bakari omary said ngochi vs the director of public prosecutions 2023 tzca 17505 18 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA fCORAM: JUMA, C J„ KEREFU. J.A.. And RUMANYIKA. J.A.l CRIMINAL APPEAL NO. 219 OF 2021 BAKARI OMARY SAID @ NGOCHI.................................................... APPELLANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS................................RESPONDENT (Appeal from the Decision of the Resident Magistrate Court of Songea) (Malewo, PRM Ext. Jurist dated the 01st day of April, 2021 in RM. Criminal Sessions Case No. 5 of 2020 JUDGMENT OF THE COURT 16th & 18th August, 2023 KEREFU, J.A.: The appellant, BAKARI OMARI SAIDI @ NGOCHI and THABITI MOHAMED @ MALUKULA (the second accused, who is not a party to this appeal) were charged with and convicted of the offence of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code) in RM. Criminal Sessions Case No. 5 of 2020 before the Resident Magistrate's Court of Songea (Malewo, PRM - Ext. Juris.). It was alleged that, on 28th March, 2019 at 15:30 hours at Muhuwesi Village within Tunduru District in Ruvuma Region, the appellant and the second accused murdered one Tariki Issa Mohamed (the deceased). They both denied the charge levelled against them. However, after a full trial, the trial court found that the case against the second accused was not proved to the required standard and thus acquitted him. As for the appellant, the trial court found that he was culpable of the offence charged and thus convicted and sentenced him to the statutory sentence of death by hanging. In a nutshell, the prosecution case found in the record of appeal indicates that; the deceased, a student of standard VI, was living at Muhuwesi Village with his parents and siblings. On 27th March 2019 at around 08:00 hours, the deceased came back early from school as he informed his parents that standards IV and VII were doing the National Examinations. As such, Issa Mohamed Ndenje (PW3), his father, assigned the deceased to go to the farm {the shamba) to collect groundnuts. The said shamba was located at Chasa Muhuwesi Village. The deceased used his father's bicycle to go to the said shamba. It was the PW3's testimony that he bought the said bicycle from one Mohamed Issa Chimanje (PW13). 2 It turned out later that, up to about 13:00 hours, the deceased was not yet back home. At around 16:00 hours, PW3 instructed Ally Issa Mohamed (PW5), the deceased sibling, to follow up on the whereabouts of the deceased. It was the testimony of PW5 that, on his way to the shamba, he met the appellant who looked worried and disturbed to the extent that he wanted to run away. PW5 inquired from the appellant if he had seen the deceased, the appellant replied that he had not seen him. Thereafter, PW5 went back home and informed his parents that he could not locate the deceased. PW3 reported the missing of the deceased to the Mosque, Village authorities and Police. Since the tracing of the deceased was unsuccessful on the first day, the searching went on in the next day, i.e 28th March, 2019. At around 15:00 hours, while still searching for the deceased, PW5 and other people saw the signs of bicycle tyre which they decided to follow. The said signs led them directly to where the body of the deceased was placed. They found the deceased body hanged on the tree while his hands and legs tied with ropes. The deceased's body had some bruises around the neck, hands, arms, and private parts. 3 The revelation about the deceased body was reported to police. No. G 7946 DC Ally (PW11), the investigation officer went to the scene of crime where he found the body of the deceased in the state described above. PW11 prepared a sketch map of the scene (exhibit P7) and the body of the deceased was taken to Tunduru Hospital for investigation. An autopsy on the deceased's body was conducted by Dr. Fredrick Mabena (PW1), who concluded that the death of the deceased was caused by suffocation. A post mortem report to that effect was admitted in evidence as exhibit PI Zuberi Saium Omera (PW12), testified that he heard that the appellant was found with the bicycle which was in the possession of the deceased. PW12 stated further that they managed to arrest the appellant at his home on 30th March, 2019 and took him to Tunduru Police Station where he was interrogated by No. G. 3589 DC Mohamed (PW15) and recorded his cautioned statement (exhibit P9). Thereafter, on 3rd April, 2019, the appellant was taken to Itika Chris Korosso (PW10), a Primary Court's Magistrate and Justice of the Peace where he recorded his extra­ judicial statement (exhibit P6). It was further revealed that the appellant sold the said bicycle to Said Ntila Saidi (PW7). The selling of the bicycle was done through a written sale agreement (exhibit P4) which was drafted by Samama Hamidu Ntila (PW6) the acting VEO of Mbarikiwa Village and witnessed by Ntila Saidi Ntila (PW8) and Thabit Mohamed Malukula. In tracing the said bicycle, Ally Seleman Rashid (PW9), the Chairperson of Mbarikiwa Village led Inspector Msongareli (PW14) to PW7's house where the bicycle was retrieved. PW14 seized the said bicycle and signed the search warrant (exhibit P8). They then arrested PW7 and took him together with the bicycle to the Police for interrogation. Then, the bicycle (exhibit P2) was handed over to No. G. 5164 PC Saidi (PW2), the exhibit keeper. In their respective defence, both, the appellant and his co-accused denied any involvement in the alleged offence. Specifically, the appellant (DWl) testified that, he was arrested on 29th March, 2019 at his home and taken to Tunduru Police Station where he was interrogated about the death of the deceased and the bicycle. He repudiated exhibit P9 alleging that he was tortured and forced to sign it. He stated that the sale agreement was prepared at Police in the presence of PW6 and he was told to confess that he sold the bicycle at Mbarikiwa Village. He added that he did not know the second accused as they both met at the police station. He however admitted to have been taken to PW10 to record his extra-judicial statement. When the respective cases on both sides were closed, the presiding learned trial Magistrate summed up the case to the assessors who sat with him at the trial. In response, the assessors unanimously returned a verdict of guilty to the appellant and opined that the second accused was not guilty. In his final verdict, the learned trial Magistrate agreed with the assessors and found the appellant guilty and convicted him as indicated above. Aggrieved, the appellant has come to this Court protesting his innocence. It is noteworthy that on 23rd July, 2021, the appellant lodged a memorandum of appeal comprising four grounds of appeal. However, on 14th August, 2023, Mr. Vicent P. Kassale, learned counsel who was assigned a dock brief to represent him, substituted the said memorandum with a new memorandum comprising only one ground of appeal which can conveniently be paraphrased as follows: "The learned trial Magistrate erred in law and fact for failure to properly sum up and direct the assessors on vital points 6 o f law upon which the decision o f the court would be based. The omitted points include, the circum stantial evidence, the doctrine o f recent possession and the appellant's confession." At the hearing of the appeal before us, the appellant was represented by Mr. Vicent P. Kassale, learned counsel whereas Mses. Tulibake Juntwa and Sabina Silayo, both learned Senior State Attorneys joined forces to represent the respondent Republic. Upon taking the stage to amplify on the ground of appeal, Mr. Kassale prayed to abandon the first memorandum and be allowed to add yet another ground in the substituted memorandum on ' the failure by the learned trial Magistrate to adequately address the assessors on their roles during the trial after being selectedV Starting with that additional ground, Mr. Kassale had brief but focused submission that pursuant to the record of appeal at page 37, it is clear that three assessors were appointed to assist the learned trial Magistrate during the trial of the case. However, after their selection, the said assessors were not informed on their roles and responsibility during the trial to enable them to effectively participate in the proceedings. He 7 contended that the said omission prejudiced the appellant hence rendering the entire proceedings a nullity. To support his proposition, Mr. Kassale referred us to our previous decision in Batram Nkwera @ Mhesa v. The Director of Public Prosecutions, Criminal Appeal No. 567 of 2019 [2022] TZCA 139: [24 March 2022: TANZUI] and urged us to nullify the proceedings on account of that omission. In response to the additional ground, although, Ms. Juntwa readily conceded that the learned trial Magistrate did not inform the assessors their roles during the trial, she argued that the said omission was not fatal as the said assessors actively participated in the trial by asking questions for clarifications when it became opportune for them to do so. To bolster her proposition, she referred us to the case of Boniface Thomas Mwimbwa & Another v. Republic, Criminal Appeal No. 325 of 2019 [2023] TZCA 192: [19 April 2023: TANZUI] and urged us to dismiss the additional ground for lack of merit. Having considered the argument of the learned counsel for the parties on this additional ground, we appreciate that by practice after selection and clearance of the assessors, the learned trial Judge or Magistrate is required to inform them their role and duties during the 8 trial. In Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 [2018] TZCA 185: [6 September 2018: TANZLII], we emphasized that: "... it is equally important that although informing the assessors on their role and responsibility is a rule o f practice and not a rule o f law, as it is for a long time an established and accepted practice in order to ensure their meaningful participation; a trial judge must perform this task immediately after ascertaining that there is no any objection against any o f the assessors by the accused before commencing the trial. It is also a sound practice that a trial judge has to show in the record that this task has been fully performed." It is on the record that, in the instant appeal, the assessors were properly selected and cleared, as shown at pages 37 and 38 of the record of appeal. However, as rightly conceded by Ms. Juntwa, the learned trial Magistrate overlooked enlightening them on their role and duties. There is a plethora of authorities to the effect that such an omission, when affected the active participation of the assessors during the trial, it rendered the trial a nullity. See for instance, the cases of Hilda Innocent (supra) and Batram Nkwera @ Mhesa (supra). 9 To the contrary, having scrutinized the entire trial proceedings in this appeal, we find no difficulty to agree with Ms. Juntwa that the said omission was not fatal and did not occasion any injustice to the appellant. We say so because, we are satisfied that notwithstanding the omission, the record of appeal shows clearly that the assessors fully participated in the trial by asking questions for clarifications as expected of them in terms of section 177 of the Evidence Act - see Ernest Jackson @ Mwandikaupesi and Another v. Republic, Criminal Appeal No. 408 of 2019 [2021] TZCA 585: [12 October 2021: TANZLII]. We equally find that, the case of Batram Nkwera @ Mhesa (supra) relied upon by Mr. Kassale on this aspect, is distinguishable and not applicable in the circumstances of this appeal. We thus find the additional ground of appeal with no merit. As for the first ground, Mr. Kassale contended that it is a mandatory requirement of the provisions of section 265 of the CPA that all criminal trials should be conducted with the aid of assessors who at the end should give their opinions on the case. That, for the assessors to be effectively involved and give meaningful opinions, the learned trial Magistrate, at the conclusion of the trial, and in terms of section 298 (1) 10 of the CPA, was required, not only to give a summary of the facts of the case, but also to direct the assessors on vital points of law involved in the case that may be considered in the determination of the case. He thus faulted the learned trial Magistrate for failure to direct the assessors on the vital points of law in relation to the circumstantial evidence, doctrine of recent possession and the reliance on the appellant's confession. He contended that, despite the fact that the conviction of the appellant and the resultant death sentence were wholly based on those legal aspects, the learned trial Magistrate did not explain the applicability of those principles to the assessors. It was the strong argument of Mr. Kassale that the said omission had rendered the trial a nullity. To support his assertion, he referred us to the case of Emmanuel Shomari @ Kobelo v. Republic, Criminal Appeal No. 132 of 2019 [2021] TZCA 346: [2 August 2021: TANZLII]. Upon being probed as whether he was aware with the amendment of section 265 of the CPA vide section 30 of the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2022 which made the trial by assessors optional, Mr. Kassale responded that, since the trial in question was conducted prior to the said amendments, the learned trial Magistrate H was still required to comply with the mandatory requirement of the law and not otherwise. Based on his submission, he beseeched us to nullify the entire proceedings before the trial court and order a retrial before another Magistrate (Extended Jurisdiction) with a new set of assessors. In response to this ground, Ms. Juntwa, partly conceded to the submission made by her learned friend to the extent that the summing up to assessors was not sufficiently done, but she had a different argument on the way forward. It was her argument that, since the omission was done at the stage of composing the summing up notes, the proposal to order a trial de novo (retrial) may be impracticable because some of the evidence would be irretrievable. She thus urged us to direct the learned trial Magistrate to prepare fresh summing up notes to the same set of assessors and thereafter, invite them to give their informed opinions. She reinforced her stance with our previous decision in the case of The Director of Public Prosecutions v. Ismail Shebe Islem & 2 Others, Criminal Appeal No. 266 of 2016 [2019] TZCA 21: [15 February 2019: TANZLII], where we made a similar order. 12 In a brief rejoinder, Mr. Kassale reiterated what he submitted earlier and was candid that the justice of the case warranted a retrial before a different Magistrate and a new set of assessors. Having considered the submissions advanced by the learned counsel for the parties on this ground, we wish to begin with the substantive law regulating participation of assessors in criminal trials at the High Court. As correctly argued by Mr. Kassale, since the proceedings in this appeal were conducted in 2019 to April, 2021 prior to the amendment of section 265 of the CPA vide the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2022, the learned trial Magistrate was required to comply with the mandatory requirement of the law applicable then. As it stood then, section 265 read: "All trials before the High Court shall be with the aid o f assessors the number o f whom shall be two or more as the court thinks f it " The applicability of the said provision was elaborated in the case of Charles Karamji @ Masangwa and Another v. Republic, Criminal Appeal No. 34 of 2016 [2019] TZCA 479: [2 December 2019: TANZLII] as hereunder: - 13 "...in terms o f the dictates o f the provisions o f section 265 o f the Crim inal Procedure Act, Cap. 20 o f the Revised Edition, 2002 (now 2019)...a ii crim inal trials before the High Court are mandatoriiy conducted with the aid o f assessors, the number o f whom shall be two or more as the court may find appropriate." Apart from that requirement, the trial judge or Magistrate who sits with assessors is duty bound to sum up the case to them as provided for under section 298 (1) of the CPA, which states that: - "When the case on both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact addressed to him by the judge, and record the opinion." Though, the above provisions may not seem to impose a mandatory requirement to the trial judge to sum up the case to assessors, as it uses the word 'may', it is a settled practice which the trial court has to comply with. The need to properly address the assessors on both the salient facts of the case and the relevant law was underscored by the defunct Court of 14 Appeal for Eastern Africa in the old case of Washington Odindo V. R, [1954] 21 EACA 392 in the following words: "The opinion o f assessors can be o f great value and assistance to a trial judge but only if they fu lly understand the facts o f the case before them in relation to the relevant law. I f the law is not explained and attention not drawn to the salient facts o f the case, the value o f the assessors' opinions is correspondingly reduced. " In the case at hand, there is no dispute that the appellant was convicted of the offence of murder on the basis of circumstantial evidence, the doctrine of recent possession and his own confession (exhibits P6 and P9). However, in the summing up notes to the assessors at pages 108 to 114 of the record of appeal, the learned trial Magistrate, apart from summarizing the evidence and explaining the charge and the burden of proof in criminal cases, he did not explain to them those vital points of the law featured in evidence and how the same can be relied upon to found conviction against an accused person. This is vividly reflected from the general opinions given by the assessors found at pages 115 to 117 of the record of appeal. 15 Now, since in this appeal we have already intimated that the assessors were properly selected and fully participated during the trial, it is our considered view that, the non-direction on the vital points of the law, which happened at the stage of summing up, only affected the value of their respective opinions and not the evidence adduced. We therefore agree with the submission of Ms. Juntwa that, in the circumstances of this appeal, ordering a fresh summing up to the assessors serves interest of justice better than ordering a fresh trial. We note that this is not the first time the Court has been forced to take that direction. For instance, see our earlier decisions the cases of The Director of Public Prosecutions v. Ismail Shebe Islem & 2 Others (supra) and Mashaka Athumani @ Makamba v. Republic, Criminal Appeal No. 107 of 2020 [2021] TZCA 227: [4 June 2021: TANZLII]. Consequently, we nullify the proceedings and the judgment of the trial court from the stage of the summing up, quash the conviction and set aside the sentence of death that was imposed on the appellant. We direct the learned trial Magistrate to prepare fresh summing up notes incorporating the said key aspects in the case before the same set of assessors from which they can give their informed opinion before composing judgment afresh in accordance with the law. Given the peculiar circumstances in the case, we direct that the order we have made be implemented within sixty (60) days from the date of its delivery. In the meanwhile, the appellant shall remain in custody. DATED at SONGEA this 18th day of August, 2023. I. H. JUMA CHIEF JUSTICE R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 18th day of August, 2023 in the presence of Mr. Vicent Kassala, learned counsel for the Appellant and Ms. Hellen Chuma, learned Senior State Attorney for the Respondent, is hereby certified as a true copy of the original. 17