Theobard Nzogera vs Republic (Criminal Appeal No. 244 of 2016) [2017] TZCA 996 (1 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 THEO BARD NZOGERA ...... ............................................................ . APPELLANT VERSUS THE REPUBLIC ....... ■ ••• ■■ •• ■ •••• ■■ •••••• ■ •••••• ■ • I ■■ •• ■• I I ••••••• ■ •••• ■■ •••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Matogolo, J.) dated the 13 th day of May, 2016 in Criminal Appeal Session No. 37 of 2013 JUDGMENT OF THE COURT s 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

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. In revenge, the appellant went to the deceased house at 12:00 noon and cut her twice with a machete on the head. The incidence was witnessed by Eliana Dionize (PWl) who had hidden herself in the banana plants near the deceased house. PWl screamed for help and went to one Mzee Benedicto whom she reported the matter. The appellant left from the area. PWl returned to the deceased 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 PWl was the daughter of PW2's brother in-law. After the incidence PWl left to Geita and her statement was recorded after a year. The deceased body was medically examined by ·or. 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 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 incidence occurred and he heard of the deceased's death who was his step mother at the time he was coming back from Biharamulo hospital. He, in a short, raised a defence of alibi. The appellant's defence notwithstanding, he was convicted and sentenced as above. He now seeks to impugn the decision of the High. 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. The grounds of appeal raised are that: "(i) The appellant's defence of alibi was not considered nor evaluated in the judgment. (ii) That the appellant as a witness/ his evidence was supposed to be entitled for credence and be believed unless good reasons are assigned. (iii) That the trial judge did not when summing up the case to the assessors/ direct them on the crucial issue of alibi and its legal implications. " 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: 4

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, see no reason why we should not go along with the views of both learned counsel. As demonstrated above the appellant 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 of 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. .. " 5 \

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 this defence is that the accused must furnish prior notice or give the particulars of alibi before the prosecution has closed its case. " That was all that was addressed to the assessors by the trial judge 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 its import and scope as reflected in their respective opinions. The 1 st Assessors (Aporinary Barthazar) said the accused might have gone to town just to hide himself, 2 nd Assessor (Advera Ponsian) said nothing while the 3 rd Assessors (Amour Abdallah) discounted the appellant's defence on account of African's customs especially people of Biharamulo · that he ought to have had < informed his neighbors who are clan members about the death of his sister instead of taking up the matter alone. 6

We also asked the two learned counsel whether the assessors were directed on how to determine the credibility of PWl and PW2. Both were at one that the same was not adequately done. In his judgment, and particularly in. respect of PWl and PW2's credibility, the trial judge stated at page 85: " But also PWl 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 of PWl naming the accused at the earliest opportunity is important assurance of her reliability see case of Marwa Wangiti Mwita & Another V. R., Criminal No. 6 of 1995 CAT." Lastly, at page 86 the trial judge, after considering in details the testimonies of PWl and PW2 in relation with evidence of other witnesses, concluded thus: " I have no reason to doubt the evidence of PWl and that of PW2 as every witness is entitled 7

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, PWS and PW6. " It is evident that the appellant's conviction was primarily based on the evidence by PWl and PW2 who were taken to be credible witnesses. As opposed to the above, during summing up, the following 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. " 8

He went on to state, at page 65, that: " ... 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 demeanour as well as their credibility." In their respective opinions, the assessors stated: The 1 st Assessors (Aporinary Barthazar), said: " ... The accused is the brother in-law of PW2 and the two 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: '~ .. PWl 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. 9

The 3 rd Assessors (Amour Abdallah) stated that: •~ .. PWl to PW4 all these witnesses are close neighbours. They know the accused properly. Three of them are clan members blood related. What they told the Court is the truth. .. " He entered a verdict of guilty. The assessors opinions, comprehensively considered, creates an ~ impression that the criter~ 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 a.- not in tandem with the criteri# applied by the trial judge who based on their demeanor, consistence and uncontradictory nature of their testimonies. This is a clear indication that the assessors were not availed with elaborate information of the matters on which to base in determining credibility of witnesses. The sum up was definitely inadequately done to assessors. We, lastly, asked the learned counsel to address us if assessors were directed on the fact that four key witnesses of the prosecution were 10

relatives and the legal position in respect of their credence. Both counsel held a common position that they were not. Our careful examination of the record reveals that the trial judge, apart from stating to the assessors that PWl, PW2, PW3 and PW4 were blood related 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 which prohibit them to testify. He went as far as citing the case of Hassan Bakari @ Mama John Vs. R; Criminal Appeal No. 103 of 2012 and Bashiri Salum Vs. R, Criminal Appeal No. 118 of 2012 (both unreported) in'supporting that legal position. On that account we agree with counsel of both sides that the assessors were not completely addressed on that matter. It is trite Law that all criminal trials before the High Court must be with the aid of assessors (see section 265 of the Criminal Procedure Act, Cap.20 R.E. 2002 (the CPA)). To give effect to that requirement a trial judge is required to sum up the case to assessors (See section 298 of the CPA) and in doing so the trial judge is obliged to adequately address 11

assessors on vital points of law. In case of any infraction the consequence is that it vitiates the 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 of murder before the High Court must be with the aid of assessors. One of the basic procedures is that the 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 of law to assessors, it is deemed to be a trial without the aid of assessors and renders the trial a nullity. '' To this end we are constrained to hold that the assessors were either completely not addressed or were inadequately addressed on the vital points of law for determination of the case. The Court has invariably held in a plethora of decisions that the resultant effect is that the trial is deemed to have been not with the aid of assessors. Those infractions vitiated the trial. (See Tulubuzwa Bituro Vs. R. [1982]TLR 264, Said Mshangama vs R.,(supra) and Masolwa Samwel Vs. R., Criminal Appeal No. 206 of 2014 (unreported). 12

.. 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 nova by another judge and a new set of assessors. DATED at BUKOBA this day of December, 2017. K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL 13