Japhray s/o Ismail vs Republic (Criminal Appeal No. 61 of 2011) [2017] TZCA 963 (27 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT DARES SALAAM (CORAM: I&NDA, iA., MW ARI JA, J.A. And MKUYE, 1A.) CRIMINALAPPEAL NO. 61 OF2011 JAPARY-S/O ISMAIL .................... . ..................... ........... ................ APPELLANT - VERSUS • '. .:.;.,THE REPUBLIC11..10 ..............................................iii ............... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Oar es Salaam) (Shangwa,J.). .: . dated the 20' day of December, 2010 In Criminal Sessions Case No.112 of 2007 .JUDGMENT.OFThE_COURT 25th September & 301h October, 2017 MKUYE,) A.1 The appellant, Jahary Ismail, was charged and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap 16, RE QQ2 in Crimina Sesion Case No. 112 of 2007.in the High Court at Dar es S*am (Shangwa, J., as he then was). . He was sentenced to suffer death by hanging It was alleged that on or about 12/4/2004 the appellant killed . intentionally one Joseph . Shedula at Mbibo Upogoroni area, within Kinondoni District and the Region of Dar es Salaam.

Is The facts giving rise to this appeal may be stated as follows: The appellant and the deceased were relatives (cousins) who used to • live together in the same room which they had rented in a house at Mabibo Upogoroni. PWI, Godson Lyimo also had rented three rooms in the same house. PW1, testified that in the night of 10/4/2004 he saw the appellant • . in companyL.with the deceased going to the room they used to live and from thenhe did not see them Also Namkunda Rajabu (PW8), the appellant's'-guifriend who lived at Segerea, testified to have seen the appellant on that dayrat 10:00 p.m when he went at her home and asked. as,to whether she had seen the deceased. Though• she denied to have seen him, after a short time the deceased arrived, and he ieft.together. with the appellant On 13/4/2004 morning, when PW1 was preparing himself to go to work, he experienced a dead rats' smell in the house. He asked his wife • to search for it. When he came back home in the afternoon he found the bad smell still persisting and he saw flies around the appellant's room while the door was locked. PW1 told the. trial Court that he peeped through the window and' saw the body of the deceased laying on the bed. PW1 2

4- reported the matter to the Ten Cell •Leader and later to the pOlice who came to the scene of crime. As the door was locked the police broke it. •U.pqn, opening the door: they found the deceased's dead body which was slaughtered laying on the bed. The body of the deceased wa taken to MUhimbili Mortuary where out-spy was carried out ahd revealed that the deceaseds-- deathwas-due•--to- Hemorrhagic Shock. Later; it was revealed that the appellant had travelled to Korogwe Tanga. He came back to Dar es Salaam on 23/4/2004 whereupon he was arrested in connection with the killing of the deceased During trial, the apliellarit denied 1nvolvenent The 1 eamed trial judge, after assessing the evidence from both the prosecuflon and defence sides found the appellant guilty and .Cnyicted, him of murder. while rlying • on the available, circumstantial evidence; and.. on.,,the principle that the • - appellant was the last person to be seen with the deceased. :. •- . The appellant was aggrieved by the said conviction He has now lodged this appeal white preferring four grounds of appeal in ivhich he is assailing the trial judge for one, taking and relying on the evidence of Namkunda Rajabu (PW8) contrary to the provisions of section 289 of the 3

Criminal Procedôre Act, Cap 20, RE 2002; two, failure to consider that the corroborative circumstantial evidence from which inference of guilty was drawn was not proved beyond reasonable doubt. Three, misdirecting himself and failing to hold that there was a. possibility that the offence might have been committed by somebody else other than the appellant; and four, dealing with the prOsecution evidence alone and,arrive at the clusion that it was tueind:crediblE without considering the defence ejence. ' At the hearing, Mr. Daniel Welwel, the learned counsel who repesented the appellant prayed, and leave was granted by the Court to ad4 an additional giound of appeal as per Rule 81(1) of the Thnzania Court of 1 ppeal Rules, 2009 The additional ground of appeal is to the effect that the 1 learned trialjudge erred in law and fact by failing to properly direct the on the principles underlying convition solely on circumstantial ëc'idence thereb'j influencing their verdict The respondent Republic was represented by Ms. Tumaini Mfikwá, learhed Principal State Attorhey wh.Q.was. assisted by Ms. Saada Mohamed, leariied State Attorney.' ,

Both Mr. WeIwel and Ms. Mfikwa submitted at length on the grounds of appeal as were fronted but in the course ofhearing we required both of •thm %to.,address us. on yet another new issue as to whether it was proper for theassessors to cross-exarnihe•witnesses For reasons to be revealed shortly, we wish to deal with two issues which are one, whether the assessors cross-examined the witnesses or- not, and two, whether the trial judge properly summed up to assessors efore they gave their verdicts. We propose to begin with the issue of whether the:assessorscrossexamined the witnesses or not. With regard to the issue of cross-exarninaoii of witnesses by the assessors, Mr Weiwel argued that the assessors cross-examined the witnesses and more worse, in some instances they dd so before the .. witnesi had been re-exarnined On her part, Ms Mfikwa submitted that though the assessors cross-examined the witnesses the nature of questions asked to them were not within the meaning of cross-examination. From the outset it is worth to note that it is a requirement of law that all trials before the High Court have to be withthe aid of assessors whose :nhifliber is two or more as the Court may deem fit. Section 265 of the t 5

Criminal Procedure Act, Cap 20 RE 2002 specifically puts this requirement as follows: '265. All trials before the High Court shall be with the aid of assessors the number of whom shalt be two or more as the. Court thinks fit." In thecase of Elias Mwaitarnbila&3Others V Republic Criminal Appear'No14 of 2013 TSR (unreported) the purpose of tnal with the aid of assessorvasclearIy explained The Court stated as follows "The purpose of sitting with assessors is to obtain their: opinion on the evidence asa Who/e.'See also • Mkwabi Masinga V Republic GiimihaI Appeal No. 150 of 2015 Tabora ('UnrepOtted). Under section 177 of the Evidence Act, Cap 6 RE 2002 the assessors are given a mandate to put questions to the witnesses and it stipulates as follows: - -• - "In cases tried with assessors, the assessors may put any questions to the withesse$ through or by leave of the Court, which the Court itself might put and which it considers proper" [Emphasis supplled] a

According to the above cited provision the duty to cross-examine witnesses is not on the assessors. Their duty isto put up questions to the witnesses. Cross-examination is done by the adverse partyas provided for under sections 290and 294 (2) of the CPA as hereunder: "290. The witnesses called for the prosecut/on shall be ubject to cross-exam/nation by the accused person or his advocate and re-examination by the advocate or the prosecution." "294 (2) The accused person may then give evidence on his own behalf and he or his advocate may exam/ne his witnesses:, ifany, and after their cross-examination, if any, may sum up m's case" The rn.od and roles of the parties in a case in carrying Out requirements under section 290 and 294(4) is / are provided for under section 146 of the Evidence Act as hereunder. "146(l) The examination by the party who calls him:... .. is called his exam/hat/on-in-chief (2) The exam/nat/on of a witness by the adverse party is called his cross-examination. 7

('3) The exam/nation of a witness, subsequent to the cross-examination by the party who called h/rn is called re-exam/nat/on/' As it is, the above cited provision does not provide for the assessors' duty to cross examine witnesses or the accused person. Iii this case, however, the trial judge gave room. to the assessors to crass-examine witnesses The assessors - cross-examined witnesses as fol ows At pages 10-11, 13 -14 1 15-16, 24, 27, 32, 35, 44, 48, 79 and 85 of. the Court Record it is .shown that the two assessors cross-examined •.pWi, PW2, PW3, PW5, .PW6, PW8, PW.9 1 :.PW10, PW11, DW1 and DW2 repectively At page 18, the 2nd assessor cross-examined PW4, and at pae 29 the 1 assessor cross-examined PW7 We entirely agree with Mr. Wlwel that the assessors cross-examined the witnesses. Ms. Mfikwa's argument that the assessors' question to the witnesses did not fall within thà meaning-of cross-examination does - not hold water so long as the record shows that the assessors cross-examined witnesses. Moreover, the assessors seem to have assumed the role of the adverse party by cross-examining the witnesses even before re- examinationwas_.done -. At--page-s- -94L t Js•---observed- 4hat ---aft-er 8

examination-in-chief to PW1 was concluded, it was' followed by cross- examination by Mr. Njau, the advocate for the accused. Then, the Court and both assessOrs cross-examined the' witness. Thereafter, it was followed by re-examination by Ms. Chilongozi who was the public prosecutor. This means that the prosecution side got an opportunity to make clarification even on issues raised 'by the Court and the.' assessors which the defence sie did not get Indeed, what was done by the assessors was a violation ôfl their duty to put up questions as was held in the case of Ezekiel Bkunda V. Republic Criminal Appeal No 296 of 2014 where this Court was stated

• It is not a duty of assessors to cross-examine or re-examine witnesses or accused The assessors duty it to aid the judge in accordance with section 265 of the cPA." J It also went contrary to the principle laid down in the case of Matayo Mwallm & Another V Republic Criminal Appeal No 174 of 2008 (unreported)' where it was held: . . . ... .

"In a criminal trial assessors do not cross-examine witnesses. They ask questions as per section 290 of the CPA .and section 177 of the Evidence Act." It is obvious that allowing the assessors to cross-examine witnsses was contrary to 'sections 290, 294(2) of the CPA as well as section 146 and • 177 of the Evidence Act. Even allowing the prosecutor to re-examine PW1 after the Court and assessors had cross examined the witness (PW1) was against the dictates of section . 146 of Evidence Act as the defence counsel was denied the right to re-cross- examine the witness after the Court and the assessors had cross-examined him. •. . With regrd W. the. issue whether the trial High Court Judge adequately summed up.lo assessors, which Was.:basicaUy the assence of the additional ground of appeal, Mr. Wëlwel submitted that since conviction of the appellant was based on circumstantial evidence, the Court ought to have informed. -the. assessors who were not :la.wyers 'of the: nature of .evidence, the legal: burden of proof and the principles guiding circumstantial evidence at the time of summing up. He cited, the case of Self Salum & Ally Mussa@ Silencer V Republic Criminal Appeal No. 119 of 2015 CA (Dodoma) (unreported) to bolster his argument. He 10

contended further that as the summing up was not sufficiently done, it affected the assessor's opinion because they were not properly guided. On her part, Ms. MfikWa conceded that sUmming up to assessors was not properly done and she was quick to ask the Court to order a retrial. In rejoinder, Mr. WeIwel prayed that the appellant be released. On our part, we have found ourselves in full agreement with both counsel representing the parties Section 298 of the CPA provides for a requirement of summing up to assessors and it states as hereunder "298(l) When the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence and shall then 'reqUire each assessors tol state his Opinion orally:as to the case generally ard as to any specific question of fact addressed to him by the judge, and record the opinion." The importance of summing, up to assessors ... was, expounded in the case of Elias Mwaitambilá's case (supra) where the Court stated: "The purpose of sitting with assessors is to obtain theii opinion on the evidence as a whOle. In order 11

to realize that goal section 298(1) of the Criminal Procedure Act provides for the judge to sum up the case to the assessors at the end of the trial, and before they give their opinions. If the opinion of the assessors is to be of any value it is important that the assessors fully understand the facts of the case before them and the relevant !aw. If the law/s not explained and attention not drawn to the salient facts of the case, the value of such assessor's opinion dim in ishes/' In this case, upon going through pages 128-138 of the record it is not in dispute that the trial judgedid base the conviction on among other pieces of evidence, the pinciple thatthe appellant was the last person to be seen with the deceased as was testified by PWI and PW8 He also relied on the circumstantial evidence in. that the appellant left after the • . commission of the offence. However, the trial judge did not in the • summing up explain properly to the assessors on how the circumstantial • evidence can be relied upon to.mount conviction against the.appeliant and also the danger of relying on the same. Hedid not direct the assessors on the principle of last person to be seen with the deceased person and its 12

implications. It would appear the assessors. gave opinion on the basis of what they perceied after hearing the evidence. The consquences of sUch :a situation is now settled in our land. In the case of Ntobangi Kelya & Another Vs Repubhc Criminal Appeal No 234 of 2015 this Court while quoting from the cases. of Tubuuzya Bituro V.epublic(1982) TLR 264 in which the ratiodecidendijri.. Bharat Vs Th.e Qeen (1959) AC 533 was quoted with approval, stated: Since we accept the princiole in Bharat's Case as .belng sensible and correct it must follow that in a I. . .•. criminal trial: in the. /-Ii/i court whëie assessors are H . MiSLArected on a vital point, such trial cannot be onstrued to be a tt/ai with the aid of assessors. The position would be the same where there is non-direction to assessors on a vital point." Even in this case; since the assessors were riot given any direction as regards the circumstantial evidence and the principle of last person to be seen with the deceased which were vital points to form their opinion, it is if 13

the trial was not with the aid of assessors. Hence, the, proceedings and judgment thereof were nullities. • In consequences thereof, we invoke our powers of revision, under section 4(2) of the Appellate Jurisdiction Act, Cap 141 RE 2002 to nullify the entire proceedings and the judgment of the High Court which we hereby do. We further_ordera re-thai_before another judge and a new set ofassessors. ' ' ' • .........' DATED at OAR ES SALAAM this 27th day of October, 2017. • R.KMKUYE : , , • JUSTICE OFAPPEAL . I certify that this isa true copy of the original. I A.H.MMI DEPLJTY'REGISTRA COURT OF APPEAL .., • •. 14