Elias Mtati @ Ibichi vs Republic (Criminal Appeal No. 65 of 2014) [2014] TZCA 2152 (14 August 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LUANDA. J.A.. MASSATI. J.A.. And MUSSA. JJ U CRIMINAL APPEAL NO. 65 OF 2014 ELIAS MTATI@ IBICHI .............................................. APPELLANT VERSUS THE REPUBLIC...................................................... RESPONDENT (Appeal from the a Judgment of the High Court of Tanzania at Dodoma) (Makuru, J.^ dated the 25th day of September, 2012 in Criminal Appeal No. 113 of 2005 JUDGMENT OF THE COURT 11th& 14th August, 2014 MUSSA, J.A.: In the High Court of Tanzania, at Dodoma, the appellant was arraigned for murder, contrary to sections 196 and 197 of the Penal Code, Chapter 16 of the Laws. The information laid at his door alleged that on or about the 26th September 2005, at Mlowa Bwawani Village, within Dodoma Rural District, the appellant murdered a certain Roda Mihambi@ Pima. We shall henceforth refer to Roda as "the deceased". The appellant denied the

accusation but, after a full trial, he was found guilty, convicted and handed down the mandatory death sentence (Makuru, 1). The evidence which led to the appellants' conviction was comprised in the testimonies of three prosecution witnesses as well as a post-mortem examination report (exhibit PI) and a knife (exhibit P2) which was allegedly employed in the killing. From the totality of the evidence, it was common ground that the deceased was the estranged wife of the appellant and that, at the material times, she was cohabiting with another man going by the name of "Mgoni." Also undisputed, was the fact that both the appellant and the deceased were residents of Mlowa Bwawani Village. The circumstances under which the latter met her demise were narrated by two witnesses, namely, Joyce Mukuta (PW1) and Esther Meda (PW2). On account of an ailment to which we shall later revert in the course of our judgment, we need only extract the details of the occurrence from the evidence of PW1. As it were, on the fateful day, PW1 who operates a cafe was at her place of business. Around 8.00 am or so, the witness heard someone miserably wailing outside her cafe. She rushed outside and, just then, she saw the appellant stabbing the deceased on her neck. PW1 was at a distance

of about twenty (20) paces from where the stabbing took place and, according to her, both the appellant and deceased were well known to her as fellow villagers. Soon after the attack, the deceased fell to the ground. The witness (PW1) shouted an alarm to which several villagers attended and surrounded the appellant. The villagers instructed the appellant to drop the knife but, in response, he threw it on the roof of one of the business stalls in the vicinity. The appellant was apprehended there and then by the villagers. In reply to the foregoing prosecution version, the appellant claimed that he was apprehended by villagers as he was purchasing meat at Mlowa Bwawani market place. The appellant claimed that he was unarmed and was surprised to be told that he was arrested for killing his ex-wife. The appellant persistently urged that the case for the prosecution was sheer fabrication. He, nonetheless, conceded that there was no prior grudge between him and the prosecution witnesses but he could not tell why PW1 and PW2 told damning lies against him. As hinted upon, on the whole of the evidence, the trial court was satisfied that the prosecution proved its case to the hilt and, accordingly, as

already intimated, the appellant was convicted and sentenced to death. He is presently aggrieved and, at the hearing before us, he was represented by Mr. Godfrey Wasonga, learned advocate, whereas the respondent Republic had the services of Ms. Beatrice Nsana, learned State Attorney. The learned counsel for the appellant fully adopted the memorandum of appeal which was drafted and lodged by his client on the 8th May, 2014. The seven (7) grounded memorandum is couched thus:-

1. THAT, the trial Court erred in iaw in holding his judgment when convicted I Appellant basing on the weakness o f prosecution's evidence due to the fact that there is no any conclusive evidence that given by the Prosecution's Witnesses to prove the case o f Murder against I appellant(sic).
2. THA T f the PW1, PW2 and PW3 were not the witnesses in Law due to the reason that both of them were not mentioned in the P/H therefore even their evidence was wrongly accepted by the trial Court. Please turn on 24-25 o f the Court Proceeding.
3. THA T, since the case on our hands is a murder. Therefore the one who have a duty in law to prove this case (act) is only a doctor, but

surprisingly the said person was not called to prove the allegations and support the EXH.P.l. 4. THAT, Although PW1 and PW2 told the Court that I was arrested at the scene o f Crime after being killed the deceased, but there is no people who arrested me that appeared before the Court to Corroborate the story o f PW1 & PW2 (sic). 5. THA T, the, PW1 & PW2 also did not say as to how I was on material day, their evidence is silent on such important point of Identification. 6. THAT, although PW3 explained before the Court that due to my arrest she said I appellant I was wearing a shirt with bloodstain but surprising such shirt was not collected and used as an exhibit before the Court. 7. THAT, the lower Court erred in law and in fact in holding his Judgment when convicted I appellant by ignoring my defense. On the 17th July, 2014 the learned counsel for the appellant separately lodged his own memorandum of appeal of which he requested the same be treated as a supplementary memorandum. This memorandum is comprised of two grounds, namely:-

1. That, the trial Judge erred in iaw and fact by convicting the appellant basing on weak and contradictory evidence.
2. That, the trial Judge erred in iaw and procedure by allowing the Assessors to cross-examine witnesses instead o f putting questions as provided by the law. In support of the appeal, Mr. Wasonga commenced his submission by reiterating the complaint raised on ground No. 2 of the main memorandum of appeal to the effect that the evidence of the three prosecution witnesses was improperly received on account that none of them was mentioned in the list of witnesses given by the prosecuting State Attorney during the preliminary hearing. After a brief dialogue, Mr. Wasonga refined the complaint and directed his arsenal towards PW2 alone. It should be noted that the statement of this witness was not disclosed and her name was not listed at the committal proceedings. On this score, the learned counsel for the appellant urged that the evidence of PW2 is as good as useless and should be expunged from the record. Advancing to the third ground of appeal, Mr. Wasonga criticized the trial court for not informing the appellant his right to decide whether or not he wished the medical officer who performed the postmortem examination

to be summoned. On account of this ailment, the learned counsel for the appellant, again, urged us to expunge exhibit PI from the record of the evidence. Addressing the second ground of the supplementary memorandum of appeal, Mr. Wasonga further criticized the trial court for allowing the assessors to cross-examine PW1 instead of putting questions in accordance with their statutory mandate. In this regard, it is noteworthy that, in her style, the learned Judge signified the examination-in-chief of witnesses with the acronym: "XD," whereas the cross-examination and re-examination were, respectively, preceded with the letters: "XXD" and "RXD." From the proceedings below, it is beyond question that the assessors' questions to PW1 were preceded with the acronym: "XXD" and, thus, Mr. Wasonga quite correctly deduced that the trial Judge allowed the assessors to cross- examine the witness. In his submission, the learned counsel for the appellant was of the view that the mishap would have the effect of rendering the entire proceedings a nullity. Finally, Mr. Wasonga canvassed the remaining grounds of appeal generally by impressing on us to find that the evidence adduced in support of the case for the prosecution fell short of proving the offence charged to the required standard.

For her part, Ms. Nsana resisted the appeal and fully supported the conviction and sentence. Nonetheless, the learned State Attorney candidly conceded that the evidence of PW2 was improperly accessed by the trial court much as her statement or the substance of her evidence was not read at the committal proceedings. Ms. Nsana, nevertheless, contended that even if the evidence of PW2 is expunged, the accounts given by PW1 and PW3 would suffice to uphold the conviction. The learned State Attorney just as well conceded that the postmortem report was improperly adduced without the trial court informing the appellant his right to require the medical officer summoned for examination. But, Ms. Nsana was, again, quick to rejoin that even if exhibit PI is expunged from the record, there is ample evidence to establish the fact of death of the deceased. In this regard, she referred to us the unreported Criminal Appeal No. 62 of 2004 - Mathias Bundala Vs. The Republic. Responding to the complaint relating to the assessor's questioning, the learned State Attorney, similarly, conceded that the record indicates that the assessor were, indeed, allowed to cross-examine PW1. She added, though,

that the misnomer did not prejudice the appellant and was, thus, curable. To bolster her contention, Ms. Nsana referred to us the unreported Criminal Appeal No. 147 of 2008 - Mathayo Mwalimu and Another Vs. The Republic. The learned State Attorney finally submitted that the appellants' conviction was upon well constituted evidence and, accordingly, the appeal should be dismissed. In our consideration of the points of contention raised in this appeal, we propose to first address the complaint with respect to the featuring PW2 as a witness. As correctly submitted by counsel from either side, it is not explicit from the record that PW2's statement or the substance of her evidence was read at the committal proceedings. In this regarded, the provisions of section 289 (1) of the Criminal Procedure Act, Chapter 20 of the Laws (CPA) are instructive:- No witness whose statement or substance o f evidence was not read at the committalproceedings shall be called by the prosecution at the trial unless the prosectuion has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness.

As it turned out, the prosecution did not give the appellant's advocate prior notice before accessing the testimony of PW2. To that extent, we entirely subscribe to the submissions of the learned counsel for the appellant and, in the result, the testimony of PW2 is, accordingly, expunged from the record of the evidence. But, as we shall shortly demonstrate, the appellant was implicated by the evidence of the other witnesses, that is, PW1 and PW3. We will, next, reflect on the complaint with regard to the assessors being allowed to cross examine PW1 instead of putting questions to the witness. As we have said, Mr. Wasonga correctly deduced this disquieting detail from the record and, it seems to us beyond question that the assessors were allowed to cross-examine PW1. In this regard, we wish to reiterate what we stated in Mathayo Mwalimu (supra) that in criminal trials, the role of the assessors is not to cross-examine but, rather, their mandate is to put questions to witnesses in terms of section 188 of the Evidence Act, Chapter 6 of the Laws which stipulates:- "In cases tried with assessors, the assessors mayput any questions to the witness, through or by leave of

the court, which the court itselfmightput and which it considers proper " Thus, in the case under our consideration, it was wrong for the trial Judge to give room to the assessors to cross-examine PW1. The crucial question is, however, the effect tied to this short coming. It seems to us that when confronted with a corresponding misnomer, each case would be dictated by its own circumstances, the determining factor being whether or not the person accused was prejudiced. Looking at PWl's response to the assessor's questioning, it seems to us that the questions were focused on what she testified in court and, for that matter, we are of the settled view that the appellant was not prejudiced. That being so, we respectfully decline the invitation of Mr. Wasonga to the effect that the procedural mishap rendered a nullity the entire trial proceedings. We will, finally, address the complaint about the admittance into evidence the report on post-mortem examination (exhibit PI). As hinted upon, the document was adduced into evidence at the preliminary hearing stage. According to the record, at the end of the statement of facts which was read by the prosecuting learned State Attorney, the prosecution made a prayer to have the autopsy report tendered into evidence. There was no

objection from the other end and, accordingly, the document was admitted without more. Thereafter, the post-mortem report was listed amongst the undisputed facts of the case. As correctly formulated by Mr. Wasonga, it is not apparent from the record that the trial court informed the appellant of his right to require the medical officer summoned for examination. Often times it is forgotten that just as is the case with section 240 (3) of the CPA, its kith, section 291(3) of CPA, also carries with it the requirement under which the court is imperatively enjoined to inform the accused of his/her right to have the medical officer summoned for examination. In the case of Dawido Qumunga Vs. The Republic [1993] TLR 120, this Court held thus:- The provisions o f section 291 o f the Criminal Procedure Code are mandatory and require the court to inform the accused about his right to decide whether or not he wants the doctor who performed the post-mortem called to testify. Unfortunately, that was not the only ailment befalling on the autopsy report at hand. We have, additionally, noted that it is just as well not apparent from the record that the contents of the post-mortem report were read over and explained to the appellant to meet the requirements' of

section 192 (3) of the CPA and the accompanying Rules comprised in the Government Notice No. 192 of 1988. Our views are fortified in the unreported Criminal Appeal No. 135 of 1991- Bahati Masebu Vs. The Republic where it was held with respect to GN. 192 of 1988:- "We desire to make four brief observations about these Rules. First, there can hardly be any doubt that they are couched in mandatory terms. Secondlywe consider that in that context "the facts o f the case" include the materials contained in documents like extra-judicial statements, autopsy reports and sketch plans. Thirdly, it is thus essential that the materials in such documents also to be read and explained to the accused. And lastly, it is the accused and not his advocate, who should be asked to state the facts which he admits." The second and third observations tells it all: That it is imperative to have the person accused posted on the contents of materials accompanying the facts, such as here, the contents of the autopsy report. To this end, on account of the non-compliance with the provisions of sections 192 (3) and

291(3) of the CPA, the report on post -mortem examination was improperly adduced into evidence. We are, in the result, left with no other option than to expunge exhibit PI from the record of the evidence. In the absence of the autopsy report, we are immediately confronted with three main issues, all of which are necessary for the determination of this appeal. The first is whether or not there is sufficient material to establish the fact of death of the deceased. If so, the second issue would be whether or not such material leads to the conclusion that the death was unnatural. Again, if positively so found, the last question would be whether or not the evidence sufficiently implicates the appellant as the causer of death. We should hasten to observe that all these are questions of fact that may be established and proved by circumstantial evidence (See the unreported case of Mathis Bundala) (supra). This being a first appeal, we have the mandate to address the questions and arrive at our own conclusion We need not detain ourselves on the issue respecting proof of the fact of death, much as, we think there are sufficient pointers on the evidence to establish beyond doubt that Roda Mihambi@ Pima is, indeed, dead. More particularly, PW1 testified that after the attack on her, the deceased fell to

the ground and did not rise. The witness new the deceased quite well as a fellow villager and in her testimony she categorically stated that Roda is presently dead. The other witness is WP 3624- detective corporal Mary (PW3), the investigation officer. In her account, she found Roda lying dead on a table at Bwawani dispensary where she was taken after the attack. From the evidence of the two witnesses, it is beyond question that Roda is, indeed, dead. As regards the issue whether or not hers was an unnatural death, the evidence was to the effect that the deceased fell after being attacked by a knife. PW3 further testified that upon viewing her at the dispensary, she noticed that the deceased had stab wounds on her head, neck and hands. Thus, taken as a whole, we so find, the evidence compels no other inference than that the death of the deceased resulted from wounds sustained from the knife stabbing and, that being so, hers was a violent death. Addressing the final issue, the unbroken chain of the evidence was to the effect that the deceased died soon after the attack on her by the appellant. The irresistible inference, in the circumstances, is that the bodily

injuries inflicted upon her by the appellant were the operating cause of death. To this end, on the whole of the evidence, albeit for different reasoning, we fully associate ourselves with the trial court's finding that it was the appellant who caused the death of the deceased. Considering the nature of the weapon used as well as the wounds inflicted on the deceased, the conviction for murder cannot be faulted. In the end result, this appeal is devoid of merits and we, accordingly, dismiss it in its entirety. DATED at DODOMA this 13th day of August 2014. B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL