Mt. 101296 Omary Mwichande and Others vs Republic (Criminal Appeal No. 71 of 2016) [2017] TZCA 1057 (13 October 2017)

,,,. IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUSSA, J.A., MZIRAY,J.A., And MWANGESI( J.A.) . CRIMINAL APPEAL NO. 71 OF 2016

1. MT. 101296 OMARY MWICHANDE . .·
2. MT. 1012271 RAJABU MUSSA KHAM!·
3. . MT. 101263 MUSSA VUAI HASSAN --~-- ....••.. ;.,, •....• APPELLANTS
4. MT. ~~.-tS06 RICHARD COASTER FRSCH VERSUS ,,¾/ 1 ',· \ ,. THE RE"P:.g.$LI_C-•-•••·--·;·11· ■ ·-·••••••••••·1111a .. ■ 11 ■.■ .s ■ i:1 ■ 1111111111 ■ 1n1,i1111_r,,1111:1nor ■ ll111,1 ■ RESPONDENT . -:-;_~- ~~ (APPE:~al from the decision of the High Court of Tanzania at Mbeya) ' (Mam bi, J.) dated the. 2 nd day of March, 2016

• -in Criminal Sessions Case No. 68 of 201_4 JUDGMENT OF THE COURT' - 27 th September & 13 th October, 2017 ,,,,<· . . .·, MUSSA1 J.A.: . In the High Court of Tanzania, at Mbeya, the appellants were arraigned for murder, contrary to sectlcin 196 of the Penal Code, Chapter 16 of the Revised Laws. The particulars on the information alleged that · ·· on the 18 th November 2012, at Mbalizi DDC area, within the District of 1 . .

• Mbeya, the appellants murdered a .. certain Petro Sanga. -· We - shall hnceforth -refer to him as "the. deceased'' .. They all· denied 'the accusation and, accordingly, the matter was taken to a full enquiry. At the end of the. trial \Aihich was comprised of . . 1 nine witnesses and eight dqcumentary exhibits featured by the j prosecution as against the defence case which involved seven witnesses 1 • I j _ .. ~ and three documentary exhibi_ts;- .the iappellan,ts. vvere found guilty, -, j ~ convicted and handed down the mano"atory death sentence. They are ' . ' . . presently aggrievd upon a variety _of points of grievance but, before we reflect on the issues of contention; itis riecessar,yto unveil the factual · setting, albeit, briefly. The fateful incident was preceded by a separate occurrence which involved an attack on a military soldier by civilians at the referred Mbalizi

• DDC area, on the 17 th November, 2012. It was undisputed that the i victim, namely, Godfrey M~tete was an army soldier based at the _ 1 Tanzania Peoples Defence Forces (TPDF) military battalion camp which . was frequently referred as "JWTZ 44KJ, Mbalizi". Evidence was to the I effect that, in the aftermath of the attack, the victim was hospitalized ·• 2

.. 7 ~ I!,: ' ' but, it was said that some of his colleagues at the camp were unamused . . . I and were. bent on a revenge .. . . . . . - . . . . As Jo who among the soldiers at the 44 Kfere bent on a revenge, was a detail wholly derived from the testlmony of Said1 Malima (PW4) who happened tp be a,sol.dier at the·camp·.,i::ariieri around 7.00 p.m ... or so, .on the fateful day, PW4 was at Pov,J'er Pub, Mbalizi area, He had ., ,: i": .;,, gone there to visit-his girlfriend, namely 1 .Reheri1a; who was not called •' .. ·- ...• - . '" -:: .. as .a witness. The witness stayed at the pub for an hour or so,· .<< . i • j whereupon he depated. heading towards. the camp~ Just as he ·, • ~ : ·:: •· •, ••• , \ I '•:·, : ·:. c • , '..'. •• _ , • •;:·! : departed, P\N4 sa'w a grop of about thirty persons who were armed· .,(: r '. -~ ; •. , • , •. . • . · .. -· . .,, , .,,, , ... :·: ... :- ~( :.i :· .... , . . ,,) -·· ·. __ .;r·;;. ·. ,. ·., ;, t with clubs and military . .trouse(s beits. The vvitness did not elaborate on .' the distance from 1 the 'pub: to;v ✓ her§ he' rnet this group bGt, he aligeclly .. immediately recognized the second, third and fourth appellants as being . . : amongst the group, as it were, with the aid of an unexplained source 0f . · light. Apprehending that the group wc1s ,up to r10 good, PW4 exclaimed . ' ·. .. . .' ', '' ... ; . ,.·. ·.," ,. to them the word "tnicmic// so as to_ clearly identify himself as a fellow . . ., • . :- . '. • .. - .. ' . : . ,• .... ; : .. J ' soldier. According to him, the prefi, 1nicmic is a military slang for a i greeting. 3

From the testimonies of Mani Andulile (PWl) and Bosco Choga (PWS) it quite evident that around 8.30 or ?o, a large group of persons . , physically de_scended upo_n the customers who were at the Power Pub and that, i17 th_e ensuing pandemonium, sever~! persons were injured just as several chairs, tables and other properties were broken; . •' ' : ' . ' . Nonetheless, as regards the deceasedi it was not clearly spelt out as to when and how he got involved in. the chaos. All what was said of him came from the testimony of Assistant Inspector Deus Wambura (PW7) who said: ·"' running away., We also found one person . inflicted with a .s!Jarj::J :object on the g1;vunclni::.1ar- ' Vavene grocery.near DOC- 1 took the casua!ity with our•. car to IFISI referral -hospital for· treatment" If the'testimonyor°PW7 is anything to· go by, the deceased was . attacked at Vavene grocery and, while PW7 was at the hospital, he . . . received a call that some people. had invaded. Power Pub and were 4 •

-. terrorizing customers. Thus, upon his instructions,. Inspector Grayson Shila (PW8) visited both Vavene Grocery and Povver Pub. PW8 noted that there were blood stains at th~ door-step · of Vavene. grocery, .. ,, whereas at the latter scene, a varietycof proprties such as chairs, tables .; ',, ; . .- ,·• ... and bottles were found broken. As regards the deceased who was, hospitalized,· the evidence of PW7 was further to the effect that he was.informed of his demise in the morning hours of the 19 th :November; •2012. :.Upon: a .post-mortem examination (exhibit Pl) the primary cause ofrhis death was .attributed· to severe bleeding.secondary to a·cut :wound 1 .vhich was inflicted on the . . . ,. -. . . . left side of his,neck. In the aftermath of th deceascl's' dernis'E, the appellants were. arrested and implicated for the homicide. 1-\s it were, during the trial, .-, ; .'· .,: . . they all denied the accusation and protested their innocence in their respective testimonies which were mainly in the nature of alibis: presiding Judge (Mambi; J.) summed upthe case to the assessors. More . • 5

particularly, in certain instances, the learned Judge impressed on them ' : I thus: - ··:.:;~ ...... _..

• ~~J:t~;:_ '-. "The. said deceased n1et ·his brutal death after fJeing stabbed ·on 18/11/2012 caused by the acused persons to the Charge Sheet and othei evidence as .test/fiec/ .by some witness/ (See" · · t .;i~--;· 1 • 1 :.4s you may recall fron1 the evidence/ the deceased wasstabbed withsharp object by one : oflhe 'a.ccused~/(See page·J42J. ., .. < . "On the night of the· death oflhe d~ceased the - .. · ac;used person5 had earliei · invaded tMtO bars /ncluding. Power . Pub Bar where . the deceased met his death""(See page 143), . · Having: been addressed, the assessors who sat with Judge seemingly returned an unanimous verdict of "guilty" as against all appellants. -We have ·said ''seemingly'; because the third assessor, in .. particular, expressed some doubts despite her opinion that all appellants 6

1_.·· .' ,!·;, : ,;· were. responsible for the death of th~ dE2cecased. - In the upshot, the learned Judge was impressed by the.case for the. prosecution which, he · said, had established its case to the hiltand,·accordingly, the appellants . . were convicted and handed down the mandatory death sentence. ' ; , The appellants are aggrieved upon a lengthy joint memorandum . of appeal which is comprised. pf six pqints_cdf grievance. Of particular - _ interest to us is ground No~ 5 vv.hich -halJenges the:trial .Judge thus: - "That the trial judge erred ti1 law and in fact by 'directing hd influencing his asses:orl; li7St6~~cl;t S{)rnming Up to thm/ ai1cl,;1pbrted extraneous_ matters which were not canvassed in evidence At th nearing,: before;·:t.i,' th· apr;e-Hant~ vere represented by ··.· three learned Advocates,· amely, Mr. 'Harhid fv1bwezeleni, Mr. Pacience .. i Maumba and Dr. Tasco· Luamba'np. o' ·\h- adversary side, the '. respondent, Repub,lic ·had. the. services. of Messrs- Ofmecly. f 1 ltenga and· Hebel Kihaka,. both . learned·. State .. At:torne,ys. ·::,We impressed upon 7

.,: ,,,.:.,' ... counsel .from either side to address us on Ground No. 5 o_f the joint memorandum which, we think, ·will sufficiently dispose of this appeal. 7 fr1 this regard, Mr .. Maumba, on beha'if of the on·sortium of the \ appellant's advocates, fully :adopted the written submissions which, he ._ j said, sufficiently addresses the-issue of Contei1tion. The learned counsel ., for th appellants:- criticized the presiding Judge for influencing the as?essC?rs in his su·mming up .. Mr. Maumba further submitted that, even

as the judge did so, he misdirected the assessors to take into account . . . . . . . .. . . . . . . . . extraneous matters ·which· were. not· capvassd by the evidence· or-1 . ' . . . . . • . . . ; • • .·! record.· .In the circumstanc_es, he learned counsel· for the appellants . ' . . .. : . ' . .. J urged· us to nullify the proceeding.but cautioned us not to. order aJetrial i ·!· t i i . that I· . j. i To this submission, Mr. _Mtenga wnt long 9 _nd similarly cautioned ,,- 4' . . a retrial _wjll ·.,11ot.serve any useful purpose as the evidence of j identification of the appel-lants by PW4 was unrliable. i . !° . '•. ;·.<' .. :. -':.; I . --, I Having heard the submissions ·of.counsel from either side on this '.: \ : . . . ' ' . . . ' : ~ .. . . •. ~ . . . . . . . ;' :. :. '. -~: ' . . . . . . . . I .·.• -\ issue, we fully. subsc;ribe: to the complaint that ·tne learned Judge· did, :, ·.\ . . . . . ,. . .: . , ... : .... :.-:. . . I indeed, impress his own views on the evidence a_nd thereby influencE;d' :_ : __ •.' • • • . '. ' • . :_· . . . • • ' . • '. : . : . . • ~ ; • • : i . . • : ~ • • . . . . 8

the assessq_rs in his· summing up. By; for .instance, impressing on the . assessors. that the deceased :met his demise after he was "stabbed by . the accused, persons", the learned judge disclosed his own theory which was, after all, not canvassed by the evidence.~ Similarly, his direction . that the appellants "invadd two bars including power pub Bar w.here the deceased met his death" was a detail of his own invention unworthy ·of being put to the assessors. It should be recalled that, on ·.te .c:ont.rary, the evidence was to th~ effect tht.the deceaed's attack napp~ned:at Vavene grocery) and, · ·. "' what is more; .there was nor a grsiin of evicJence to the ffect thatthe ... • appellants also invaded that.grocery. In the case of ALLY JUMA MJ\WEPA v REPUBLIC 1993 TL.R _231 (C}the Cou.rtof Appear.held thus: · · .(i) · .· When sumn1ing up ta' the assessors the trial Judge shou/[l · as far as possible desist frorn disclosing his own viel!v'.5/ or making /'en1afks of. co1nintH7tS which /night influence the assessors one way or another in making -up their own 9

minds about the issue or issues being left with them for consideration/ (ii) The assessors should b~ made to give their opinions. independent!;,~ based on their · own perception and understanding of the case · after · receiving the opinions ol the assessors and in the course of considering his . . .- . . ·.· :- ., . judgment in the case/ :..........,.,,

• -i1 the:.-matter at hand, we cannot state with certainty that the appellants were not prejudiced, much as correctly argued by Mr . . Maumba, the assessors were fed into a consideration. of extraneous . . . . . t· • .. : . • ' • • ,, ! . • - ~ : .. " ' .· . . • '•: ·.:, ·. ' ......... . matters. Thus, we are satisfied that on account of the m·isdirections the . •. . . ,, '; ' . . .\ : : '· . : · .. ,.:· ·'.-.' • ,. 1 . entire· trial proceedings, were· vitiated and, accordingly, we nullify the . :,,:. proceedings upon the invocation of section· 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws. Mr. Mten.ga has aqlyi~ed us that a retri9

1 yvill save no useful purpose . and, in agreement, vye shoulcf r.~mark ttlatthere \Nas not a scintilla of evidence to ~onnect the appellants, -o.r any of them, with the Vavene . grocery incident where the deceased was attacked and, thus, the . identity of the culprits was unresolved. We, accordingly, refrain from 10

__ ._ ordering a· retrial and, instead,· we order the forthwith release ohe . appeltants from prison custody, unless if they are detained there for some other cause. DATED at MBEYA this l th _ day of October, 2017. K. M. MUSSA JUSTICE-Of APPEAL::·-• R. E·. S. MZIRAY JUSTICE Of APPEAL S. S. MWANGESI JUSTICE Of APPEAL I certify that this ·i~ ·a true copy of the-original. --- · . ' .. '·,. 11 i" ·,,,,,, /'