Richard s,o Lucas Muhanza @ Leonard & Others vs Republic (Criminal Appeal No 504 of 2016) [2017] TZCA 323 (12 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: M BAROUKJ.A.. MUGASHA, J.A. And MWAMBEGELE.3.A.) CRIMINAL APPEAL NO. 504 OF 2016

1. RICHARD s/0 LUCAS MUHANZA ©LEONARD
2. YUSUPH s/0 RAJABU M LE T E ...........................
3. ISSACK s/ o ABUU@SWAI .... . ........................
4. SAID s/ o HAMIS KATIKATI ............... ............ VERSUS THE R E P U B LIC ....................... . ................. ......... (Appeal from the decision of the High Court o f T a n z a n ia at Dar es Salaam ) (Bonaote, J.) dated the 28th day of July, 2016 m Crim inal Session Case No 22 pf,20,31 JUDGMENT OF THE COURT 04*8^ l^MSctober, 2017 MBAROUK, J.A.: In the High Court of Tanzania at Dar *es Salaam, the appellants RICHARD s/o LUCAS MUHANZA @ LEONARD, YUSUPH s/o RAJABU MLETE, ISSACK s/0 ABUU @ SWAI and SAID s/0 HAMIS KATIKATI (hereinafter the first, second, third and fourth appellants respectively) together with five others .... APPELLANT APPELLANT ...APPELLAN T .... APPELLANT RESPONDENT

who are not subject to this appeal were charged with two counts of the offence of murder contrary to section 196 of the Penal Code, Cap. 16 R. E. 2002. They were found guilty of the offence, hence convicted and sentenced to death by hanging. Aggrieved by the decision of the High Court, Bongole J. dated 28th day of July 2016 the appellants preferred this appeal. According to the information before the High Court the appellants were facing the charge of murder where it was allegedly stated that,-being in a company of other people who were acquitted, on the 31st day of July 2009 at IMM6 Temeke Branch in Temeke District in Dar es Salaam Region, the appellants murdered one Seif s/o Atnoman Mkwike on the first Count and on the second Count that, at the same time, date and place, the appellants also murdered one E. 329 CPL Joseph P. Milambo. ■ Briefly put, the facts of this case may be stated that, on the material date the armed bandits invaded NMB Bank at Temeke, with the intention of stealing money there from. Before they could do anything they opened gunfire directed at

the police officers on guard. Consequently an exchange of fire ensued between the police officers and the bandits. It was in the course of that exchange of bullets, that one police officer and one private security guard were shot dead. As the firing continued, the bandit threw three' hand grenades into the guard room.-The police officers were thus subdued. Thereafter, the bandits entered into the bank and made away with unknown amount of money from NMB arid her customers. Prosecution witnesses alleged to have identified three bandits, among them were the second and third appellants. Upon interrogation the first and fourth appellants and others who are not part of this appeal were linked with the commission of the offence. Henceforth- they were charged with the offence of murder before the High Court. After trial, the High Court found the appellants guilty of the offence. For the reason apparent to be shown herein, we found convenient to state at this stage that this background suffices to demonstrate what transpired prior to the conviction of the appellants.

In this appeal, the first and third appellants were represented by Mr. Edward Lisso, and second and fourth appellants were represented by Mr. Leonard Manyama, both learned advocates, whereas the respondent/Republic was represented by Dr. Zainabu Mango and Mr. Tumaini Kweka, both learned Principal State Attorneys. ■ Mr. Edward Lisso and Mr. Leonard Manyama had lodged their memoranda of appeal containing three and two specific grievances respectively in respect of their clients. The grounds of appeal for the l^and 3r c 1 appellants which read as follows:-

1. THAT, the Honourable trial Judge erred in law and -fact by relying •upon a single identifying witness of the 1st and 3rd Appellants respectively, which was not absolutely watertight to justify a conviction for lack of other credible expert evidence to corroborate the evidence of PW1 and PW2.
2. THAT, the Honorable trial Judge grossly erred in law and fact in relying upon the identification of

the 1st Appellant at an identification parade which was flawed in that PW1 had not given a detailed description of the suspect and for want of strict compliance with Section 60(1), (2), (3) and (4) of the Criminal Procedure Act (CAP..20 R.E. 2002 and the Police Force and Auxiliary Police Force Act (Cap: 322 R.E. 2002). 3. THAT, the Honorable trial Judge further erred in law and fact in convicting t h e l ^ Appellant on the basis of a retracted confession which was vitiated by torture. Whereas the.2n d and 4th appellants grounds of appeal were:-

1. THAT, the Honorable-trial Judge erred in Law and facts by convicting the 2n d and 4th appellants basing and or relying on the evidence of identification with no physical description of the appellants.
2. THAT, the Honorable trial Judge erred in law and facts by convicting the 4th appellant basing on the identification evidence of the prosecution witness

"(PW2)" one Noel Lupembe during the trial with no prior description of the 4th appellant. Before we let counsel for both sides to canvass these grounds of appeal, we foundkourselves constrained to ask them to address us first, on the- soundness of the trial of the appellants and their conviction on account of the patent non involvement of assessors in the conduct of trial and failure by the judge to consider opinion of assessors without assigning any reason(s). Mr. Manyama was sharp to grasp the issue raised, he quickly submitted that section 265 of the Criminal Procedure Act Cap 20 RE 2005 (hereinafter the CPA) mandates a criminal trial before the High Court to be aided by assessors. According to the record of appeal, ten witnesses'testified before trial. Assessors were denied a chance of full involvement when all these ten witnesses were testifying, they were not allowed to put questions to witnesses as required by section 177 of the Evidence Act. To attest, Mr, Manyema provides some instances as it appears on 3rd September, 2013 at pages 82-85 of the

record of appeal, in that day PW1 was testifying; and on 04th September, 2013 at pages 87-91 when PW3 was giving a testimony. He argued that taking part of assessors includes allowing them to put questions to witnesses. On second aspect, with regard to non-consideration of assessors opinion without assigning any reasons, Mr. Manyama was of the firm view that, that was another fatal irregularity committed by trial judge. He pointed out that, according to section 298(2) of the CPA, judges are not bound by the opinion of assessors but when he or she differs with them, the judge is mandated to give reasons thereof. He submitted that, such irregularities vitiate the whole proceedings and make the proceedings a nullity. Hence, he prayed for the Court to invoke Section 4(2) of the Appellate . Jurisdiction Act, Cap 141 R.E. 2002' (the AJA) to quash proceedings and the conviction and set aside the sentence and order a re-trial.

Mr. Lisso on his side was at one with the Counsel for first and third appellants' submission, he therefore adopted and associated himself with what Mr. Manyama submitted. Mr. Lisso added that at page 351 of the record of appeal the judge differed with’ assessors who opined for the appellants to be set free without giving reasons to that effect. He reiterated that, I such anomaly taint the- whole proceedings and the consequences are for this Court to nullify the proceedings, quash the conviction and set aside the sentences. • Dr. Zainabu was not far apart with the appellants' advocates. She submitted that the assessors were not involved in trial to put questions from PW1 to PW50. He supported her observation by citing to us a- reported case of Abdaiiah Bazamiye & Others v. R [1990] TLR 42 at page 45. With regard to an issue that opinion of assessors were not considered with reasons, she hastily pointed out that was another irregularity. She asked us to revisit a case of Abdaiiah Bazamiye & Others (supra) at page 45.

We are inclined to agree with the counsel for the appellants and the learned state attorneys that non- involvement of assessors and failure to consider opinion of assessors without assigning reasons are serious irregularities which render the whole proceedings a nullity. Section 265 of the CPA mandatory requires all criminal trials before the High Court to proceed with aid of assessors. For easy of reference the provision provides as foliows:- "265 - A ll trials before the High Court shall be with the aid o f assessors the number o f whom sh all be two or more as the court thinks fit " According to the section, it is incontrovertible that trial of this nature ought to be conducted with the aid of assessors. Such aid is not limited to assessors to be in Court as mere statues. The judge should • cause active and effective participation of assessors in the proceedings and at the time of giving opinion. 9

The undoubted invaluable role of the assessors in trials before the High Court does not demand an elaborate exposition from us. It is as respected as it is indispensable. Discharging in good faith this rule, they are the eyes and ears of justice when determining issues of fact in any trial with assessors. Active and effective participation of assessors is emphasized in cases of Samson Njarai and Leah Njarai v. Joseph Meseviro/ Civil Appeal No. 92. of 2015 and The General Manager Kiwengwa Strand Hotel v. Abdaiiah Said Musa, Civil Appeal'No. 13 of 2012 (both unreported). For this reason, although, the trial judges are not bound by the assessors opinions .but some. principles have" been developed by this Court and its predecessor to ensure active and effective participation'of assessors. Those guidances are found in a case of Kandi Marwa Maswe v. R, Criminal Appeal No. 467 of 2015 (unreported) which provides that.:- "(i) Where an assessor who has not heard a ll the evidence is allow ed to give an opinion on the case, 10

the tria l is a nullity: see, for instance, Joseph Kabai v. Reg. (1959) 21 EACA 260; (ii) A tria l which has begun with the prescribed number o f assessors and continues with less than two o f them is unlawful: see, for instance, Clarence Gikuli v. Reg. (1959) 21 EACA 304; Nyehese Cheru v. R .(1988) TLR140, etc; (Hi) Where the tria l judge does not agree with the opinion o f an assessor, or assessors he/she should record his reasons, or else the om ission m ight lead to the vitiation o f the conviction: see, for instance, Baland Singh v. Reg. (1954) 21 EACA 209; (iv) It is a sound practice which has been consistently follow ed and should be followed, to give an opportunity to an accused person to object to an assessor: see, Tongeni Maata v. R, (1991) T.L.R. 59. ii

(v) Denying the assessors the opportunity to put questions to witnesses means that the assessors were excluded from fully participating in the trials: see, Abdallah Bazamiye and Others v. R, (1990) T.L.R. 42; (vi) Where in a trial with the aid of assessors, there, is no summing up of the case to the assessors and as a consequence their opinion not taken, the trial is a nullity: see, Khamis ..Nassoro Shontar v. S.M.Z. (2005) T.L.R.2.28; and (vii) W here there is inadequate summing up, non-direction or m isdirection on ... a. vita l■ point o f law to assessors, it is deemed to be .a tria l without the aid o f assessors and renders,the tria l a nullity. See, Said Mshangama @ Senga v. R., Crim inal Appeal No. 8 o f 2014 and Masolwa Samweli v. R., Crim inal Appeal No. 206 o f 2014 (both unreported), etc. "[Emphasis added]. 12

One of the principles is effective participation of assessors as outlined herein above is to avail the chance to put questions (if any) to the witnesses. Expectation to put questions to the witnesses by assessors is provided by section 177 of the Evidence Act, we quote:- ''In cases tried with assessors the assessors m ay p u t any questions to the witness, through or by leave o f the court, which court itse lf m ight p u t and which it considers proper". In the matter before- us, first, assessors were not given chances to put any question to all ten prosecution witnesses as well as all defence witnesses who testified during the trial. We are of the opinion that, the record ought to have clearly stated the participation of each assessor in asking questions. If any member among the assessors does not have a question to ask, the record shows "NIL" after recording his name. What we insist here is that, it should be apparent in the proceedings that 13

the assessors were given an opportunity to put questions to witnesses. In the case of Abdailah Bazamiye and Others (supra), referred to us by Dr. Zainabu, the appellant Abdailah Bazamiye and five others, were convicted of murder and consequently sentenced to death for assaulting to death one Enock Hinyonza Masharubu allegedly, a train robber. Like in this case it was apparent on the trial judge's record that the gentlemen assessors were not given the opportunity to put questions to witnesses although the learned trial judge agreed with the assessors' opinion* This Court held thus:- "0) Denying the assessors the opportunity to put questions means that the assessors were excluded from fu lly participating in the trials; (ii) to the extent that they were denied their statutory right\ they were disabled from effectively aiding the tria l judge who could only benefit fully 14

as he would have if he had taken into judicious account a ii the views o f his assessors; (Hi) assessors' fu il involvem ent in the trial is an essentia! part o f the process, its omission is fatal ' and renders the tria l a nullity /" We subscribe to this finding and approve the same. This puts to rest the first issue which we think suffices to dispose of this matter, but to put the record clear, we feel imperative to say a bit on the second aspect that is, assessors opinion was disregarded by the trial judge without explanations or reasons given. It should be borne in mind that in this matter, assessors were in unanimous view that the appellants were not guilty of the offence with which they were charged. The judge was of the contrary view. In such circumstances, it was expected for the judge to assign reasons which caused him to differ with them in order for us to appreciate on whether-the judge was 15

right or wrong to do so. In Bazamiye Case (supra), the Court clearly puts this point at page 45 as follows:- "For our purpose in the Court o f Appeal, the inform ed and fu ll views o f the assessors become further necessary when we have to rely on what we m ight ca ll the Segesela principle, that is in the event o f the tria l judge disagreeing with the unanimous, views of his assessors we shall want to determ ine whether he was entitled to do so. In order to enable us to make that determ ination m eaningfully we m ust know the judge’s reasons for so disagreeing, and to appreciate those reasons we would have to gauge them against the fu ll and inform ed views o f the assessors which they can only express satisfactorily if the-trial was with their aid as explained. This need fo r a judge to give his reasons fo r disagreeing with the unanimous views o f h is assessors was enunciated in Charles Segesela v R., E.A.C.A Crim inal Appeal No. 13 o f

1973, from a case tried in Tanzania, and we wish to express our approval o f it." Non-involvement of assessors and failure to consider opinion of assessors without assigning reasons are serious irregularities, for whatever reason, distorted the proceedings to the detriment of any party to the proceedings, the trial cannot be said to have been conducted with the aid of assessors. It becomes a nullity. Coming to the next issue, learned advocates and state attorneys asked us to make an order for retrial. With respect, where the trial court mis-directs itself on an essential step in the course of the proceedings, it does' not, in our view, automatically follow that a re-trial should be ordered, even if the prosecution is not to blame for the flaw. Clearly, of course, each case must depend on its particular facts and circumstances. This Court has consistently subscribed to the holding in the case of FATEHALI MANJI v. R [1966] E.A.343 to the effect that: 17

7/7 general, a retrial may be ordered only when the original tria l was illeg al or defective; it w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or for purposes o f enabling the prosecution to fill in gaps in. its evidence a t the first- tria l. .... each case m u st depend on its own fa c ts \ and an o rd e r fo r re tria l sh o u ld only be m ade w here th e In te re sts o f ju s tic e re q u ire i t " [Emphasis added]. On the other hand, we are also aware that the appellants have been in prison for more than seven years. Tnere is no doubt that, that is a long period. Much as we may sympathize wifh theappellants' predicament, it is our well-consideredview that, given the circumstances of the case it would be in the interest of justice to order a retrial. Pursuant to section 4(2)of the AJA, we quash the entire proceedings and conviction and set aside the sentence and order a retrial of the case as 18

expeditiously as possible by a different judge and different set of assessors. Order accordingly. DATED at DAR ES SALAAM this 10th day of October, 2017. M. S. MBAROUK JUSTICE OF APPEAL S. E. MUGASHA JUSTICE OF APPEAL J.C. M. MWAMBEGF.LE JUSTICE OF AftPKAL DEPUTY REGISTRAR COURT OF APPEAL I certify that this ' 19