Ruling No Case to Answer REPUBLIC vs MELKYORI FAUSTINE NGOWI 3 OTHERS Criminal Sessions Case No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT

MOSHI CRIMINAL SESSIONS CASE NO. 18 OF 2023

THE REPUBLIC

VERSUS 1. MELKYORI FAUSTINE NGOWI 2. FAUSTINE STEVEN MTUI 3. RICHARD AUGUST NGOWI 4. FILBERT BERNARD KESSY

RULING 17th & 18th October, 2024 MONGELLA, J. The accused persons, MELKYORI FAUSTINE NGOWI; FAUSTINE STEVEN MTUI; RICHARD AUGUST NGOWI; FILBERT BERNARD KESSY have been charged with the offence of manslaughter contrary to Section 195 and 198 of the Penal Code, Cap 16 R.E.

2022. In proving the charge, the prosecution mounted three (3) witnesses. As a matter of procedure, at the closure of the prosecution case, this Court has to make a ruling on whether the prosecution has managed to establish a prima facie case against the accused persons for them to be required to enter defence in terms of Section 293 (2) of the Criminal Procedure Page 1 of 6 Act, Cap 20 R.E.

2022. Under this provision, the court is required to call upon the accused person(s) if it considers that there is evidence that the accused person(s) committed the offence or any other minor or alternative offences in accordance with the provisions of section 300 to 309 of the same Act. If the court considers that there is no evidence that the accused person(s) or any one of several accused persons committed the offence or any other minor or alternative offence under the provisions of section 300 to 309 of the Act, it is required to record a finding of not guilty. What amounts to prima facie case has been explained in various cases. In the case of Republic vs. Kakengele Msangikwa [1968] HCD No. 43, the Court stated: “A prima facie case at least must be one which a reasonable tribunal could convict if no evidence is offered by the defence.” In the above cited case, the Court acknowledged with approval the principle laid down in the case of Ramanalal Trambaklal Bhatt vs. Republic [1957] EA 332 at page 334 whereby it was stated: “Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, Page 2 of 6 we cannot agree that “a prima facie case” is made out if, at the closure of the prosecution, the case is merely one, ‘which on full consideration might possibly be thought sufficient to sustain a conviction.’ This is perilously near

suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is ‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.’ A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilsin, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defense has been heard. It may not be easy to define what is meant by a ‘prima facie case’ but at least it must mean one in which a reasonable tribunal properly directing its minds Page 3 of 6 to the law and the evidence could convict if no reasonable explanation is offered by the defense.” With respect to the principles established in the above cited authorities, it can be said that a prima facie case can be considered to have been established by the prosecution where in consideration of the prosecution case as a whole, a conviction can be entered against the accused persons, unless the said evidence is rebutted on defence. See also: The

Republic vs. Samwel George Hiza @ Mwagavumbi & 3 Others (Criminal Sessions Case No. 122 of 2019) TZHC 4384 TANZLII. After setting the legal ground, the nagging question in the case at hand is therefore whether the prosecution has established a prima facie case against the accused persons. As pointed out earlier, the prosecution mounted three witnesses, to wit, the councilor of Marangu Magharibi Ward (PW1); the police officer assigned to investigate on the offence (PW2); and an allegedly eye witness (PW3). It is not doubted that the deceased in this case, one Erasto Mtui, died an unnatural death. This was proved by the prosecution vide a post mortem report tendered by PW2 and admitted as Exhibit P1. Apart from PW2, who also adduced contradictory and highly hearsay evidence, the rest of the prosecution witnesses gave testimonies that vindicated the accused persons from criminal liability in the charge at hand. PW2 stated mentioned PW3, one Gerald Augustine Mtui, as one of the Page 4 of 6 victims who were beaten together with the deceased, as the eye witness who mentioned the accused persons as the persons who attacked the deceased thereby causing his death. However, to the contrary, when PW3 testified, he admitted being one of the victims attacked together with the deceased. He testified to have seen and remembered the culprits by their faces. However, when asked to identify

the alleged culprits in Court, he categorically stated that the said culprits were not in the Court room. He denied the accused being the ones who attacked him and other fellow youths, including the deceased. The testimony of PW3 somehow corroborated that of PW1, who stated to have seen the accused persons, who are militiamen in the village, blocking the angry villagers from attacking the deceased and the other youths who were arrested for stealing and taken to the village office, before being taken to Himo police station and later to Himo health centre. The testimony of PW2 and PW3, in fact, stripes that of PW2 its evidential weight. This is because, as testified by her, PW2’s investigation was not directly conducted as she relied mostly on the information gathered from the case file assigned to her. She even did not interrogate PW3, but relied on the statement found in the case file. The contents of the alleged statement were however negated by PW3. PW2 further contradicted herself when she admitted at one point that angry villagers were present at the scene and Page 5 of 6 attacked the deceased. Her evidence is therefore not to be relied on for being contradictory and hearsay. Having observed as hereinabove, in terms of Section 293 (1) of the Criminal Procedure Act, Cap 20 R.E. 2022, I find that there is no sufficient evidence mounted by the prosecution establishing prima facie case against the accused persons. Accordingly, I record the finding of not guilty against the accused persons, MELKYORI FAUSTINE NGOWI; FAUSTINE STEVEN MTUI; RICHARD AUGUST NGOWI; and FILBERT BERNARD KESSY, and do hereby acquit them of the charge of Manslaughter. Dated and delivered at Moshi on this 18th day of October 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 6 of 6