mabula

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA rCQRAM: MWARIJA, J.A.. MASHAKA. J.A. And FELESHI, J J U CRIMINAL APPEAL NO. 222 OF 2023 MABULA MWANDU @ NYAU , 1st APPELLANT MWIGULU JOSEPH @ ZENGO 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) ( Mwenempazi, J.> dated the 23fd day of March, 2023 in Criminal Sessions Case No. 40 of 2021 JUDGMENT OF THE COURT 11th & 24th March, 2025 MASHAKA, J.A.: The appellants, Mabula Mwandu @ Nyau and Mwigulu Joseph @ Zengo were jointly charged before the High Court of Tanzania at Sumbawanga sitting at Mpanda in Criminal Sessions Case No. 40 of 2021 for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019. They were convicted and sentenced to death by hanging. It was alleged that, the appellants on the 30thday of August, 2020 at Urwila Village within Mpanda District in the Region of Katavi did jointly and together murder one Maige Makenzi. They pleaded not guilty and went to full trial. To prove the charge, the prosecution produced seven witnesses and the trial court admitted in evidence seven (7) exhibits namely; the report on post mortem examination (exhibit PI), extrajudicial statement of 1st appellant (exhibit P2), extrajudicial statement of 2nd appellant (exhibit P3), the cautioned statement of the 2nd appellant (exhibit P4), statement of Ester Machia (exhibit P5), a sketch map (exhibit P6), a certificate of seizure (exhibit P7) and the cautioned statement of the 1st appellant (exhibit P9). The record speaks of exhibit P8 collectively admitted identified clothes belonging to the appellants though the record of appeal states that they were not seen. The brief facts established from the evidence on record are that; on the fateful date, while the deceased was sleeping with his wife, Esther Machia in their house the latter heard voices outside the house, Unexpectedly, the door was kicked and broken. The deceased came out wearing under pants running in an attempt to save himself, but the assailants ran after him. Using sticks, they assaulted him until he died. Earlier on, at the house of the 1st appellant, there was a wedding which was attended by among the others, the 2nd appellant. At a certain time while the wedding celebrations was continuing, the appellants and three other persons left and later returned to the wedding. After the incident, the appellants were thus arrested. E278 D/SGT Salum Katikoga (PW4) recorded the cautioned statement of the 2nd appellant who confessed to have murdered the deceased. Likewise, F2241 D/SGT Celcius Mosha recorded the cautioned statement of the l sl appellant. Later, the 1st appellant was taken to Elisante Marco Pallangyo (PW2) a Justice of Peace. The 2nd appellant was taken before another Justice of Peace, Suzan Gregory Temu (PW3). Both appellants confessed through the extrajudicial statements exhibit P2 and P3. In their defence, the appellants disassociated with the commission of the offence. They stated that on the fateful date, they were attending a wedding party. The next morning the 1st appellant was informed about the death of the deceased and he attended the burial ceremony. While the 2nd appellant testified that he heard that the deceased was attacked and he joined the villagers at the scene of crime and stayed there until the body of the deceased was collected by the police. At the end, the trial court was satisfied with the evidence of the prosecution that it proved the charge beyond reasonable doubt. The trial court convicted the appellants basing on the statement of Ester Machia (exhibit P5) which was tendered in evidence by WP 7593 D/CPL Salome (PW5) and the confessional statements (exhibits P2, P3, P4 and P9). Aggrieved, the appellants preferred this appeal. They filed a memorandum of appeal dated 24/4/2024 containing six grounds of appeal which were abandoned at the hearing, in substitution/ lodged a joint supplementary memorandum of appeal dated 05/03/2025 grounded on the following complaints; - 1. That the appellants were denied the right o f fair hearing since there was a conflict o f interest between the accused persons and each accused was not given a separate advocate to represent him. 2. That the learned trial judge erred in law by admitting and basing its conviction and sentence on exhibits P2, P3, P4r P5, and P9 which were wrongly admitted in evidence. 3. The learned trialjudge erred in law and facts by convicting and sentencing the appellants while the case was not proved beyond reasonable doubt. At the hearing of the appeal, the 1st appellant was present and represented by Mr. Peter Kamyaiile, learned advocate, while Ms. Tunu Mahundi, learned advocate appeared for the 2nd appellant who was aiso present. The respondent, Republic, had the services of Messrs. Calistus Kapinga and Joseph Mwakasege, both learned Senior State Attorney and State Attorney respectively. When we called upon Mr. Kapinga to state their position concerning the supplementary grounds of appeal, he supported ground 1 that the appellants were denied the right of fair hearing because they were not assigned a separate advocate. He faulted the trial Judge for allowing a single advocate to defend the appellants instead of a separate advocate to represent each of the accused persons who had conflicting interests in the charged offence. Mr. Kapinga further argued that the nature of evidence which the trial court relied upon to find the appellants guilty and convict was the cautioned and extrajudicial statements of the appellants in which each appellant implicated the other. He contended that the appellants were denied the right to a fair trial and representation by an advocate for each of them. In the premises, he argued that the failure to provide such right of representation caused a miscarriage of justice as they were denied a fair trial. Additionally/ he submitted that the way forward, is to nullify the trial proceedings, quash and set aside the conviction and sentence meted on the appellants and to order a retrial so that each of the appellant can get a fair trial. Rejoining, Mr. Kamyalile submitted that they are in agreement with Mr. Kapinga as that is the position of the law. We have duly considered the record of appeal and the submissions of the learned counsel who notably agreed that the appellants were denied a fair trial as they were not assigned separate advocates who could have taken care of their interests and effectively defend them during the trial. Thus, the issue for our determination is whether the appellants were fairly tried. The complaint in ground 1 as earlier alluded is that the appellants were denied a fair trial for not being assigned separate advocates to represent them causing a conflict of interest. The record speaks for itself, It is clear that the appellants were represented by learned advocates Pendoveera Nyanza and Angela Remi when the trial commenced with the hearing of the prosecution case, in terms of the evidence adduced from PW1 to PW3. However, come 21/2/2023 when PW4 was called on to testify, only learned advocate Angela Remi was in court to represent the appellants until the prosecution closed its case and the trial court ruled that the appellants had a case to answer. Ms. Angela Remi, learned advocate represented the appellants during hearing of the defence case and submitted final written submissions. Reading the cautioned statement of the 1st and 2nd appellants, it is clear that each one implicates the other on the commission of the offence. Therefore, it was not effectively practicable for the same advocate to conduct cross examination for the appellants leading to a conflict of interest. On the issue of conflict of interest, the Court in Elias Mwaitambula v. Republic (Criminal Appeal No. 414 of 2013) [2015] TZCA 266 (18 August 2015) observed that, "... having admitted the confession o f the first appellant, he [the trial Judge/ should have noted that there were conflicts o f interest among the accused persons. So, it was not practicable for all the accused persons to be effectively represented by one counsel. In such a situation, the best the trial court could have done was to adjourn the trial, so that each accused could get a different counsel to realize their right to effective legal representation. " Regarding the above excerpt, the conflict of interest between the appellants at the trial was apparent, They could not be effectively represented by one advocate. What the trial court ought to have done in the circumstances was to adjourn the triai and order that each appellant be assigned a separate advocate. The said procedural irregularity renders the proceedings a nullity because the appellants were denied fundamental rights of being heard and represented. See for instance, Masanja Magishi and 3 Others v. Republic (Criminal Appeal No, 286 of 2021) [2024] TZCA 1112 (15 November 2024) and Mugisha Katulebe v. Republic (Criminal Appeal No. 76 of 2022) [2024] TZCA 1157 (28 November 2024). Effective representation before the court of law is one of the tenets of a fair hearing which embraces a fundamental right to be heard envisaged under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. The Court had these observations in Mugisha Katulebe v. Republic (supra): - "One o f the legislative measures in place to ensure fair hearing to obtain legal services by way o f legal aid is prescribed under section 33 o f the Legal Aid Act [Cap 21 R.E. 2019] which states: "Where in any criminal proceedings,\ it appears to the presiding Judge or Magistrate that:- (a) in the interest o f justice an accused person should have legal aid in the preparation and conduct o f his defence or appeal as the case may be; and his means are insufficient to enable him to obtain legal services; the presiding Judge or magistrate, as the case may be, shall certify that the accused ought to have such legal aid and upon such certificate being issued, the Registrar shall assign to accused a legal aid provider which has an advocate for the purposes o f preparation and conduct o f his defence or appeal as the case may be. The operationalization o f the cited section on o f the Legal Aid ('Remuneration o f Advocates) Rules, 2019 and Rule 3 stipulates as hereunder: ”3(1) Pursuant to the provisions o fsection 33 o f the Act, the presiding Judge or magistrate, after inquiry and upon being satisfied that the accused person is in need o f legal aid, shall give an order to that effect (2) Upon receipt o f the order, the Registrar or magistrate in charge shall assign to the accused person a legal aid provider in the LA Form No. 1 set out in the First Schedule to these Rules■" According to the stated position of the law, after it is established that the accused is in need of legal aid, he is entitled to be assigned an advocate who shall represent him before the court. However, in cases involving more than one accused person with conflicting interests and given that each accused is entitled to be fairly tried, effective representation is pertinent and it can only be attained if each accused is assigned a separate advocate. In this matter under our scrutiny, given the apparent conflict of interest between the appellants, the effective representation of the accused persons before the trial court was not practicable with a sole defence counsel representing both accused persons. InElias Mwaitambula v. Republic (supra), the Court facing a similar scenario whereby a confession by one appellant was admitted at the trial which clearly showed a conflict of interest against the other accused person. The Court heid:- "For effective representation o f the accused persons, the trial Judge ought to ha ve adjourned the trial so that each accused person could be assigned a separate counsel to realize the right to effective legal representation." The Court further emphasized: - "... having admitted the confession o f the first appellant) he [the trial Judge] should have noted that there was conflict o f interest among the accused persons. Therefore, it was notpracticable". Therefore, in view of what we have discussed, we are in agreement with the learned counsel for both the appellants and the Republic that the appellants were not fairly tried which occasioned a miscarriage of justice. On the way forward, given the circumstances of this case, an order for the appellants' retrial is the best option to ensure a fair trial for the appellants. Consequently, we allow the appeal, nullify the proceedings before the trial court after the case was scheduled for preliminary hearing, quash and set aside the conviction and sentence meted on the appellants. We direct that the information of the charged offence of murder be placed before another Judge for plea taking, preliminary hearing and the trial. The Registrar should assign the required number of advocates besides the advocate who appeared for the appellants during the initial trial. Meanwhile the appellants should remain in custody. DATED at SUMBAWANGA this 22nd day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in presence of appellants in person - unrepresented and Ms. Flavia Shayo, learned Senior State Attorney for the Respondent is hereby certified as a true copy of the original.