Sali Lilo vs Republic (Criminal Appeal No. 431 of 2013) [2014] TZCA 2191 (18 March 2014)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM; MSOFFEJ.A.. KIMAROJ.A., And MJASIRIJ.A.1 CRIMINAL APPEAL NO. 431 OF 2013 SALI LILO...... .................... ......... ........ . ......... .. ...... ...APPELLANT VERSUS TH E REPUBLIC...... ........ ..... .,... ........ . ....................RESPONDENT appeal from the judgment of the High Court of Tanza«5 ~ -* ■ Tabora) (Mruma, 3.) dated the 4th day of October, 2013 in Criminal Sessions Case No.S4 of 2010 i JUDGMENT OF THE COURT 7th & 18th March 2014 IM AROJ.A.: The High Court of Tanzania at Tabora (Mruma, J.), convicted the ppellant of the offence of murder contrary to section 196 of the Penal lode, [CAP 16 R.E. 2002]. He was sentenced to suffer death by hanging.

Aggrieved by the conviction and the sentence, the appellant has through the services of Mr. Kamaliza K. Kayaga learned advocate filed two grounds of appeal but one in the alternative to the other. The first is that there wa§ no fair trial and the whole proceedings were a nullity. The second which is in the alternative to the first one is that the appellant's defence that he killed in self defence was not considered and the learned trial judge wrongly held that it was a sheer lie. During the hearing of the appeaf Mr. Kayaga learned, advocate also represented the appellant. The respondent Republic was represented bv Mr. Juma Masanja, assisted by Mr. Ildephonce Mukandara, both learned State Attorneys. The evidence that was tendered during the trial was short. Key witnesses for the prosecution are relatives of the appellant. Juma Kalunze (PW1) blood brother of the appellant said on the 18th of August 2009 the appellant and himself slept in the same house and on the same bed. At around midnight he heard someone screaming from outside. He checked

jfche appellant. He was not in bed. He went outside and heard the cries coming from the house of the deceased who was his uncle in the sense that he was a brother of his father. The house of the deceased was nearby. He went to inform his father Izengo Masunga Sali (PW2) about the cries he heard coming from the house of the deceased. The two went to the house of the deceased. On their way, they saw a person. He identified himself as the appellant and he informed them that he had killed the deceased. Both witnesses said they went to the house of the deceased and found him dead, in a pool of blood with injuries. The deceased had cut wounds ofl the stomach, ribs ana thigh. Another witness, Maganga Kulindwa Kidiku (PW3V an uncle of the deceased also said that the abDellant admitted having stabbed the deceased., D6369 ST. Sat. Pius (Pyy4) also visited the scene of crime where he found the deceased on a bed in a pool of blood With cotwounds on the stomach, ribs, thiqh and the right hand. In his defence the; appellant admitted having cut the deceased with a knife on his chest and stomach but he said he did that in self defence after the deceased had fouqht with him. He.said it was in the course of the fiqht that the deceased fell down .on the knife that he had. The appellant then 3

picked that knife and stabbed him with it on the stomach. He said he was not in good terms with the deceased. They previously had a quarrel over a "shamba" and on the day before he stabbed the deceased, the deceased accused the appellant of stealing his wallet which had coins (colonial currency). The learned trial judge after evaluation of the evidence for the prosecution: and the defence was satisfied that the appellant had killed the deceased with malice aforethought. His decision was arrived at because the appellant used a knife to cut the deceased on the stomach and chest which are vulnerable parts of human beings. The teamed judge made reference to the case of R V Tubere 12(EACA) 63 and said: *On the question of malice aforethought in the instance case, it is common ground that the deceased was found with multiple cut wounds inflicted by a sharp object, the accused admitted to have stabbed the deceased at least twice i.e. in the stomach and in the chest.. He used a knife. This court finds that the knife used was capable of causing death depending

on the way it was used (striking)and the part of the body targeted (stomach and chest)are vulnerable parts.To that extent therefore, it was a letfia! weapon." In his submission in support of the first ground of appeal, the teamed advocate for the appellant pointed out that the charge sheet was defective as it was not prepared in compliance with Sections 132 and 135 o f the Criminal Procedure Act, [CAP 20 R.E.2002]. He said the particulars of the charge sheet offended the prescribed form in the Second Schedule to tne Act. In his view the omission to qive the proper particulars o f the offence! made the appellant fail to get a fair friar and the effect of it was that the trial was a nullity. He referred the Court to the case of Mussa Mwaikunda V R [2006] T.L.R.387. Although the case of Bahati Makeja V R Criminal Appeal No. 118 of 2006 (unreported) was brought to his attention, he was not convinced that section 388 (1) of CAP 20 could be used to cure the defect because section 275 of Cap 20 which deals with taking of the plea of an accused person by the High Court only speaks of information and not charge.

As for the alternative ground of appeal the learned advocate said the appellant should have been convicted of manslaughter and not murder. He prayed to the Court to either annul the proceedings and order a retrial or acquit; the appellant on the. conviction of murder and set aside the sentence of death by hanging and convict of with the lesser offence of manslaughter. The learned State Attorney, Mr. Masanja> supported the conviction for murder and the sentence. He admitted that there was defect in the charge sheet but he said the defect was curable under section 388 (1 ) of Gap 20. He cited the case of Bahati Makeja (supra). He said the appellant cannot contend that he was denied a fair hearing because the defect was cured when the plea of the appellant was taken under section 275(1) of Cap 20 because it was specifically stated in the facts when the preliminary hearing was conducted that the appellant killed the deceased maliciously. He said if the defence had any objection to the charge that had to be brought under section 276(1) of Cap 20 before the trial started. He said even before the trial started.the charqe was again remanded to the

appellant and he pleaded not guilty to the charge. The learned State Attorney contended that at that moment the appellant submitted himself to the trial he knew the charge that was against him was murder. Regarding the alternative ground of appeal, the learned State Attorney said the appellant admitted having stabbed the deceased so the question of manslaughter does not arise; He said the learned trial judge decided correctly that the appellant kille^clw the deceased with malice aforethought as it could be implied tram his actions. He admitted also that there was a minor error committed by the learned trial judge in conducting the trial: That was when he allowed the tiehtlemen- asseA<;nrq to cross* examine the witnesses instead of allowing them to ask questions as required by section 177 of the l^ w of Evidence Act [CAP 6 R.E. 2002]. Another error was the use of section 231(1> instead of section 29311V of Gap 20. However he said the error did not occasion any miscarriage of justice. He prayed that the appeal be dismissed.

It is admitted that the charge sheet was not prepared in compliance with section 132 and 135(a) (iv). The charge that was preferred against the appellant says as follows: STATEMENT OF THE OFFENCE MURDER, contrary to section 196 of the Penal Code [Cap. 16 R.E.2002] PARTICULARS OF THE OFFENCE SAU S/O LILO on 18th d^y of August, 2009 at about 0010 hours at Isulwa Wela division, ward of Nyasa Urban in Nzega District: within Tabora Region did unlawfully cause the death of one MAGANGA S/O MASUNGA. P a t ^ at Tabora this 20^ dav of FEBRUARY 2011 Signed Veronika Matikila STATE ATTORNEY The Second Schedule to Cap 20 contains forms for stating offences in information prepared under section 135 The particulars of the offence of murder that was preferred in respect of the appellant Ought to have read as follows:

Murder contrary to section 196 ot the Penal Code. PARTICULARS OF THE OFFENCE SALI S/O U LO did on 18th August, 2009 at about 0010 hours at Isula Wela division, ward of Nyasa Urban in Nzega District within Tabora Region murder MAGANGA S/O MASUNGA. The issue before us is whether the failure to prepare the partiajlars of the offence in compliance with section 135 and the prescribed form in the Second Schedule to Cap 20 caused miscarriage o f justice to the appellant The learned advocate for the appellant said it did because the word used in section 275 arid in all other sections regulating trials in the High Court is information and not charge, much as section 135 uses both charge and information; To answer the question it is important to know whether there is any difference between information and a charge. BRYAN A. GARNER EDITOR IN CHIEF IN BLACK'S LAW DICTIONARY EIGHTH EDITION at page 248 says that a charge means:

"7o accuse (a person) of an offence <the police charged him with murder>." As regards information he says at page 794 that it is: "a formal criminal charge made by prosecutor without a grandjury indictment" He gives the meaning of indictment as: "The formal written accusation ofa crime, made by a grandju ry and presented to the court, for prosecution against the accusedperson. " The meaning of charge/ information and indictmerlt as given by Bryan A. Garner in BLACK'S LAW DICTIONARY shows that there is no difference between information and charge as used in section 135 of Cap 20. Information is a charae aaainst an accused oerson. We can safelv sav that information is a sub-set of a charge. It is information for doing or not having done what the law forbids. Given the meaning of information and charge as shown above, we cannot, with respect to theMearned advocate

for the appellant/ agree with him that the defect in the information of murder cannot be cured by section 388 (1 ) of Cap 20. As already stated, when the facts for the preliminary hearing were read over to the appellant, (page 5, record of appeal), the appellant was informed that: " The accused was arrested and he confessed before Justice of Peace namely J.KNgqmero as well as R/O D 6369 D/SGT Pius to have m aliciously killed the deceased."i]Ext\)has\s added.) this means that the appellant was aware from the time the preliminary hearing was conducted, that the charge he was facing was that of murder. The cases of Mussa Mwaikunda V R (supra) would not apply in the facts of this case. However, we take this opportunity to remind the trial courts to take note of the observation made in the case of Mohamed Kaningo V R f19801 T.L.R. 279 that: "While it is the duty of the prosecution to file charges correctly, those presiding over criminal li

trials should, at the commencement of the hearing, make it a habit ofperusing the charge as matter of routine to satisfy themselves that the charge is laid correctly, and if not to require that it be amended accordingly." The next issue is whether the offence of murder was proved against the appellant. In this case the fact that it was the appellant who killed the deceased is not disputed. The issue is whether he killed the deceased with malice aforethought. ;As already indicated, the learned trial judge in convicting the appellant of the offence of murder did take into consideration the weapon that was used and the p^rts of the body that the appellant stabbed the deceased that is the chest and the stomach. The post-mortem examination report which was received in evidence as exhibit PI showed that the deceased had two wounds on the chesty one was 4 cm deep and 3 cm wide. The second one was 3 cm deep and 4 cm wide. On the stomach he also had two wounds. One was 6 cm deep and 4 cm wide. The second was 3cm deep and 2 cm wide. The wounds made

the deceased suffer severe haemorrhage and acute cardio respiratory failure. Obviously the deceased was fatally wounded. The appellant's defence that he killed in self defence was not believed by the learned trial judge. He analysed his defence in details. He said although the appellant said the deteased attacked him while he went outside to relieve himself and that the fight occurred outside, no traces of blood were seen outside the house of the deceased. All witnesses said they found the deceased in hTs house and in a pool of blood already dead. All witnesses were his relatives, PW1 was his brother, and PW2 was his uncle. Even PW3 was also related to hirft. The appellant admitted that he had no grudges with them. The quarrel about "shamba" the appellant admitted that it was resolved. As for the accusation that the deceased accused him that he stole his wallet we do not think that it gave the appellant the right to retaliate by killing the deceased, and worst still by stabbing him as he did in such vulnerable parts of the body. Given the authority cited by the learned judge in convicting the appellant of the offence of murder we do not think that we have a

justification to fault him. His action was brutal. The appellant by stabbing the deceased on such vulnerable parts of the body, the chest and stomach, should have foreseen that his action would cause his death. As for the minor errors comnfiitted by the trial court first in using section 231(1) instead of section 293(1) of Cap.20 we agree with the learned State Attorney and the learned advocate for the appellant that the error was not fetal. However, we remind the learned trial judge to remember that be should use the provisions relevant for trials in the High Court. second on allowing tne assessors m cross-examine tne witnesses that was a mistake. The proper procedure was to allow t e m ask qqe^ions as provided for by section 177 of tiie Evidence Act, [CAP 6 R.E.2002} read together with sections 290 and 294 (2) Of Cap 20 which show that the assessors have no room for cross - examining witnesses. The section provides: ”7 /7 cases tried by assessors, the assessors may put questions to the witness, through or by leave of the court, which the court itselfmightput and which it

The assessors must be permitted to ask questions after the prosecution or the defence is done with the re-examination of the witness. Having made our finding in respect of the first ground of appeal, the second ground of appeal naturally dies. What we say ultimately is that the appeal by the appellant has no merit. We dismiss it in its entirety. DATED at TABORA this day of March/ 2014. J.H. MSOfr=E JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. fA SENIOR DEPUTY REGISTRAR COURT OF APPEAL