Zakaria Joseph @ Ijumaa Nangwe vs Republic (Criminal Appeal No. 27 of 2016) [2017] TZCA 195 (12 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MJASIRI. J.A.. MWARIJA. J.A.. And MWANGESI. J.A.^ CRIMINAL APPEAL NO. 27 OF 2016 ZAKARIA JOSEPH @ IJUMAA NANGW E .............................................. APPELLANT VERSUS THE REPUBLIC.................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Maahimbi, 3.^ Dated 11th day of May, 2015 in Criminal Session Case No. 92 of 2013 JUDGMENT OF THE COURT 6th & 12th Dec. 2017 MJASIRI, 3.A.: In the High Court of Tanzania sitting at Arusha, the appellant Zakaria Joseph @ Ijumaa Nangwe was charged and convicted of the offence of murder contrary to section 196 of the Penal Code, [Cap. 16, R.E. 2002] and was sentenced to death. Aggrieved by the conviction and sentence, he has appealed to this Court. It was the prosecution case that on 21st day of December, 2008 at Gisambalang Village within Hanang District in Manyara Region, the i

appellant did murder one Jumanne s/o Athuman. It was alleged that the appellant shot the deceased with an arrow. The appellant denied the charge. The prosecution called five (5) witnesses during the trial. At the hearing of the appeal the appellant was represented by Ms. Neema Mtayangulwa, learned advocate, while the respondent Republic had the services of Ms. Elizabeth Swai, learned Senior State Attorney who was assisted by Ms. Janeth Masonu, learned State Attorney. Ms. Mtayangulwa presented a two (2) point memorandum of appeal which is reproduced as under:-

1. The tria l Judge erred in law and in fact fo r making a finding that the prosecution proved both actus reus and mens rea o f the appellant beyond reasonable doubt.
2. In view o f the above ground this Court should allow the appeal by quashing the conviction and setting aside the sentence. Before the commencement of hearing, the learned advocate for the appellant rose to inform the Court that the appeal record was incomplete.* According to her, the record did not contain the Judge's notes on the summing up to the assessors. Even though the opinions of the assessors

are reflected in the record, no summing up notes were in sight. She submitted that this was a serious anomaly rendering the proceedings a nullity. She asked the Court to order a trial de novo . She also submitted that there were other procedural errors on the record, for instance the assessors instead of putting questions to the witnesses, crossed examined them. Ms. Swai readily agreed with the appellant's counsel. She submitted that the Judge's summing up notes were missing from the record. The said notes were non existent and could not be found in the original file. She spoke on the important role the assessors have to play in the trial, and the requirement for summing up to them before reaching their decision. She also submitted that the assessors cross examined the witnesses instead of putting questions to them. She asked the Court to order a retrial before a different High Court Judge. We on our part, after a careful scrutiny of the record are inclined to agree with counsel that there are no summing up notes, despite the record

indicating the decision reached by the assessors. This is indeed a serious anomaly which renders the whole proceedings before the High Court a nullity. Section 265 of the CPA requires that all criminal trials before the High Court be conducted with the aid of assessors. A trial Judge is therefore duty bound to guide them accordingly. In the absence of the Judge's summing up notes in the record of appeal, it leads to the conclusion that no summing up to the assessors was done, despite the fact that assessor's opinions are reflected in the record. It is settled law that failure to record the summing up notes to assessors vitiates the entire proceedings. See - Khamis Nassoro Shomar v. SMZ [2005] TLR 228. The Court held thus:- "As there was no summing up o f the case to the assessors and their opinion was not taken, in sim ilar vein, the proceedings were in contravention o f the dear and long established practice o f the Court". In the instant case even though the opinion of the assessors were recorded, the fact that there was no summing up to them would render the proceedings a nullity.

In Stanley Anthony Mrema v. Republic, Criminal Appeal No. 6 of 2000 (unreported), this Court reiterated the position of the law regarding summing up of the case to the assessors applicable in Tanzania. In that case, the Principal Resident Magistrate in exercise of extended jurisdiction, did notproperly sum up the case and direct the assessors on the applicable law in the circumstances of the case. In view of this anomaly, the Court allowed the appeal and ordered the case to be tried de novo. The Court reaffirmed the views expressed by the Court of Appeal for Eastern Africa in Washington s/o Odindo v. R [1954] 21 EACA 392, a decision which was also followed in Andrea and Others v. R [1968] EA 684. The Court stated thus:- "The opinion o f assessors can be o f great value and assistance to a tria l Judge but only if they fu lly understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient facts o f the case, the value o f the assessors opinion is correspondingly reduced." 5

In Stanley Anthony Mrema (supra) where the assessors had not been properly directed, the Court took a serious view. In the instant case the situation is more grave as there was no summing up of the case to the assessors. See - Othman Issa Mdabe v. DPP, Criminal Appeal No. 95 of 2013 (unreported). In Samsoni Mukono and Another v. Uganda [1965] EA 491, it was held thus:- "Although section 283 (1) o f the Crim inal Procedure Code indicates that when the case on both sides is dosed, the Judge is not bound to sum up the evidence to the assessors, it is d e sira b le th a t he sh o u ld do so ; a n d th a t w hen he d oes so, n o te s o f th e sum m ing up sh o u ld a p p e a r on th e re co rd s o f the p ro ce e d in g s." The position in Tanzania, is that it is a deep routed practice. The seriousness of the matter can be determined by the findings of the Court where there is an improper guidance to the assessors. The importance of the role of the assessors in criminal trials is demonstrated in section 265 of the CPA. We need to examine the legal 6

position in order to establish the role and significance of assessors in criminal trials. Section 265 of the CPA provides as follows- "A ll trials before the High Court sh all be with the aid o f assessors the number o f whom sh all be two or more as the court thinks f it " According to various decisions of this Court, failure to conduct a trial without the aid of assessors renders the proceedings a nullity. See - Charles Lyatii @ Sadala v. Republic, Criminal Appeal No. 290 of 2011 and Kulwa Misanga v. Republic, Criminal Appeal No. 171 of 2015 (both unreported). Section 298 (1) of the CPA requires a trial Judge to sum up to the assessors the evidence for the prosecution and for the defence. It provides that:- "When the case on both sides is dosed, the judge m ay sum up evidence for the prosecution and the defence and sh all then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact 7

addressed to him by the Judge, and record the opinion." In Khamisi Nassor Shomari (supra) this Court, observed that even though the trial Judge's summing up of the case to the assessors is discretionary, it is prudent for the Judge to sum up the case. The Court stated thus:- "It is our view that this view is in accord with logic and the sp irit behind the provisions o f section 265 o f the CPA." The Court stated further:- "In our view, to hold otherwise would negate the im pact o f this very dear and m andatory provision o f the section." The Court made reference to the case of Hatibu Gandi and Others v. Republic [1996] TLR 12, where the Court took the view that although the trial Judge's summing up of the case to the assessors is not mandatory it is prudent to do so as a matter of practice. 8

In fact the Courts of Appeal of Tanzania and Kenya have subscribed to this practice. The importance of the opinion of the assessors has been underscored in the case of Washington s/o Odundo (supra). In John Mlay v. Republic, Criminal Appeal No. 216 of 2007 (unreported), the need to sum up the evidence to assessors was emphasized. The Court stated that the purpose of summing up to assessors is to enable them to arrive at a correct opinion. In Laurent Salu and Five Others v. Republic, Criminal Appeal No. 176 of 1993 (unreported), the Court had this to say in respect of summing up to assessors:- "The Court has to sum up to the assessors a t the end o f the subm issions by both sides. The summing up to contain a summary o f facts, the evidence adduced, and also explanation o f the relevant law, fo r instance, what is m alice aforethought. The Court to point out to the assessors any possible defences . " In Charo Katana Kitsao v. Republic, Criminal Appeal No. 269 of 2006 [2007] eKLR, the trial Judge failed to sum up the evidence to 9

assessors. The appellant raised this omission in his supplementary ground of appeal, which read as follows:- "The learned tria l Judge erred in law by failing to sum up the evidence to the assessors and give them proper directions as required in law before receiving their verdict. The tria l was a n u llity for failure to com ply with the la id down procedure." The court of Appeal of Kenya, making reference to section 322 (1) of their Criminal Procedure Code which is similar to our section 298 (1) of the CPA stated thus:- "Aithough by its use o f the word "m ay" the above provision gives the court the discretion to sum up the evidence to the assessors before requiring the assessors to state their opinions, by usage and case law, summing-up to the assessors is no longer a discretionary matter, for if the court requires the assessors to be o f any use to it, the assessors m ust make inform ed opinion which they can only do upon the court summing up the entire evidence to them and a t the same time directing them on issues o f law, th a t th e sum m in g up m u st n o t o n ly be 10

done b u t m u st be seen to be done. Summing up to the assessors has gained the force o f iaw and is now a m u st" [Em phasis ours.] The Court of Appeal of Kenya made reference to the case of Joseph Mwai Kungu v. Republic, Criminal Appeal No. 68 of 1993 (unreported), where the Court stated as follows:- "We would, fo r our part, now em phatically assert that the practice o f summing-up to the assessors is a thoroughly sound one and has been follow ed for so long that it has acquired the force o f law. That is what this Court, was saying in LE L E I's case and we would add that the practice is so w ell established that if a tria l Judge is to depart from it, then there m ust be some special and com pelling reason for doing so ." This means, there must be on record evidence that summing-up to the assessors was undertaken or that there was some special and compelling reason why that was not done. 11

In the instant case, the learned Judge after hearing the entire prosecution case and the defence by the appellant stated as follows:- "Evidence is summed up and elaborated to the assessors fo r the purpose o f recording their opinion. On the g u ilt o f the accused (summed up evidence attached ) . " We entirely agree with both learned counsel, that there is no tangible evidence that the learned Judge summed up the evidence to the assessors. There is no such summary in the record. In order to satisfy ourselves that this requirement has been complied with, the summing up notes must form part of the record. In the absence of the summing up notes, we cannot conclude with certainty whether or not the assessors were guided properly before giving their opinion. See - Makubi Kweli and Another v. Republic, Criminal Appeal No. 149 of 2015 (unreported). In view of what we have stated herein above, we are of the considered view that the entire trial was a nullity. In the result we are. compelled to invoke the powers conferred upon us under section 4 (2) of the Appellate Jurisdiction Act [Cap. 141, R. E. 2002] by quashing the 12

proceedings and setting aside the death sentence meted out to the appellant. We therefore order a trial de novo before another High Court Judge with a set of new assessors, as soon as practicable. The appellant to remain in custody pending retrial. It is so ordered. DATED at ARUSHA this 7th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. MSuMI DEPUTY REGISTRAR COURT OF APPEAL 13