Nkunu Ruling on no case to answer

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB - REGISTRY OF SHINYANGA AT BARIADI CRIMINAL SESSION NO. 3142 OF 2025 REPUBLIC VERSUS 1. NKUNU BULA NGOME 2. KIJA S/O BULA NGOME HOPI 3. MONGELA S/O CHEMBA NGOME 4. NTAMBI S/O BULA NGOME RULING 24th & 25th March 2025. Massam, J: - The accused persons one NKUNU BULA NGOME, KIJA S/O BULA NGOME HOPI, MONGELA S/O CHEMBA NGOME and NTAMBI S/O BULA NGOME are charged with the offence of murder contrary to section 196 and 197 of the Penal Code Cap 16 R.E 2019 The information was read over and explained to the accused persons who were required to plead thereto on their plea they pleaded not guilty to the charge. It was alleged that on 8th day of September, 2024 at Mwabasabi village within Bariadi District in Simiyu Region the accused person murdered one Kiluma Ngome Hopi. 1 When the matter was called for plea taking and preliminary hearing, the information of murder was read out and explained to them they pleaded not guilty. When the matter was called for hearing the prosecution side were represented by Mr. Patrick Chale and Shubi Muganyizi learned state Attorneys while the accused persons were represented by Mr. Robert Masige, Ms . Zawadi Lazaro, Mr. Daudi Masunga and Ms Baikane learned advocates respectively. In proving their case the prosecution summoned a total of four witnesses and one exhibit. The prosecution evidence according to its witnesses were as follows Yohana Mayala, PW1 testified that he is a village chairman and on 7/9/2024 at 5:00pm he was at center doing his work. Suddenly, he was informed that there is a dead body which was seen near the river. On that stance he informed some people and went to the scene. That further, PW1 stated that on arrival there, they found a dead body which was in the plastic bag and later he informed the Ward Executive officer who later called policemen, who told them that they will come the next day so they told them PW1 to stay there at the scene . The next day of 8/9/2024, policemen came and cut the said plastic bag and the said deceased was not identified by the said villagers as he was 2 not from his village but the accused persons were the one who identified the body to be of his uncle (baba mdogo). Later on, the policemen started to interrogate the accused persons and took them. In his interrogation to this court PW1 added that he saw nothing than the plastic bag which had a body of deceased and heard that Bula family had dispute of land but he did not know with whom. Again he said that the one who identified the said body are one who are here at the court as the accused person. Lastly he said that he had no dispute with accused persons. Dr. Rosemary Blass, testified as PW2, said that she a medical doctor with experience of five years. Her testimony is to the effect that on 9/9/2024 at afternoon she conducted postmodern together with a policeman and deceased relative. PW2 said that during examination she found out that deceased had a wound on his head, and on his left leg, his clothes had a clot blood. Later on she revealed that the cause of the deceased death was excessive bleeding due to the wound and she estimated that the death happened within 72 hours. Finally, PW2 said that was the one who filled post- mortem report which was admitted as exhibit P 1. 3 PW3 is Minza Danny, testified that in 2024 she was living at Nyangokolwa with her husband one Kiluma Ngome and their children. PW3 added that on 6/9/2024 her husband received a call from their children who are living at Mwabasabi. PW3 stated further that she heard a voice of his children but she did not find out among his children who exactly called him .PW3 said that the children who are living there were Ntambi, Kija, Nkunu, and Mongela. She added by stating that her husband told her that he is going to Mwamasabi for the land dispute settlement meeting. Unfortunately, at 7:00pm, deceased children called and ask her if her husband went to Mwamasabi and Mongela was the one who informed her that her husband was found died in the river. PW3 said that she met with their councilor namely Nkenyenge Charles, who told her to return at home as they will finish that issue so she obeyed and returned home for the preparation of her husband burial. She stated that the said ward councilor was the one who told her that the death of her husband occurred at Mwamasabi. Finally, PW3 said that she connects the death of the deceased with land dispute which he had with the accused persons. 4 Lastly for the prosecution’s case was H. 535 D/CPL BWIRE who testified as PW4, who testified that he is policeman at Bariadi Police Station with 14 years’ experience. His testimony is the effect that on 8/9/2024 they went at Mwabasabi village as there was a person who was murdered. PW4 stated that on the way they met with village chairman who took them to the scene. Also, he said that when they arrived there, they found a plastic bag which had a deceased body inside. After that they cut that plastic bag and took the said body out, all the villagers did not identify the body, but only the family of Bula Ngome (accused person) identify the said body to be of their uncle. Apart from that, PW4 said that they started to interrogate some of the witnesses who were at the scene. After the investigation they came to realize that the said murder was caused by the said family of Bula Ngome, because they had land dispute. Following that, PW4 said that they arrested all four accused persons for more investigation and take the said body to the hospital for their examination. Moreover, PW4 said that they interrogated all accused persons who denied to commit the offence. After that he complied the file and submit it to NPS office for further actions. Finally, PW4 said that Bula 5 Sitta told them that he witnessed the commission of the said offence however he is at Kenya. That was all for the prosecution and they prayed to close their case. That marked the end of the prosecution evidence/case and this court is required in terms of section 293 (1) of the Criminal Procedure Act to make a finding if this evidence adduced has established a case to answer against the accused persons as charged for the offence of murder. It is a mandatory procedural requirement that after the closure of the prosecution case, the court is required under section 293 of the CPA to prepare a ruling, finding as to whether the evidence by the prosecution has established the prima facie case for the accused persons to answer it. If it finds that the prima facie case has been established, then the accused persons will be called upon to defend their themselves, and inform them their rights guaranteed under section 293 (2) of the CPA. If the same is not established, then the court will proceed to make findings that the same has not been established and proceed to acquit the accused persons. The term prima facie case has not been statutorily defined. However, in the case of Director of Public Prosecution Vs Morgan 6 Malik & Nyaisa Makori, Criminal Appeal No 133 of 2013 CAT- (unreported) it was held inter alia that; “a prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged e or kindred cognate minor one ...... the prosecution is expected to have proved all the ingredients of the offence or minor cognate one thereto beyond reasonable doubt. If there is a gap, it is wrong to call upon the accused to give his defence so as to fill it in, as this would amount to shifting the burden of proof” In Ramanlal Trambaklal Bhatt Vs The Republic, (1957) EA 332, defines prima facie to mean, "one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence". This means, at the closure of the prosecution case, the prosecution must have given sufficient evidence capable to convict an accused person should the accused person be denied or forsaken the right to defend himself. That being the case, it is worthy and instructive at this stage, to look at what section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2022] in as far as the burden and standards of proof of a criminal charge is concerned. These two concepts were interpreted in the case of Woodmington Vs 7 OPP, (1935) AC 462. The philosophy behind the principle of Prima facie case is actually premised on the principle enshrined in the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, which insistently held that the accused person should only be convicted of an offence he is charged with on the basis of the strength of the prosecution case and not on the weakness of the defense case. That is a reason as to why at the closure of the prosecution case, a case must apparently be proved already, at the required standard of beyond reasonable doubt. In line with this principle of burden and standard of proof, another important principle becomes necessary as enunciated in the case of Mariki George Ngendakumana Vs The Republic, Criminal Appeal No. 353 of 2014 CAT - Bukoba (unreported), which inter alia held that: "It is the principle of law that in Criminal Cases the duty of the prosecution is two folds, one to prove that the offence was committed, two that it is the Accused person who committed it" Turn to our case, the accused persons are charged with an offence of murder contrary to section 196 and 197 of the Penal Code Cap 16 RE 8 2022. Under this law the prosecution side was supposed to prove the followings: 1. That the said KILUMA NGOME HOPI, was actually murdered. 2. That those who murdered the deceased had unlawfully, or had knowledge that the act or omission of killing him (malice aforethought). 3. That the said murder was actually caused by the accused persons in this case. In this case PW1 and PW3 and PW4 ’s testimony suggests that the culprits of the deceased are not known, but they assumed that the accused persons are the one who are responsible with murder because the family of Bula had land dispute with the accused persons but the same was not proved. Moreover, the charge sheet revealed that the offence was committed on 8th day of September 2024. However, PW1 said that on 7/9/2024 was informed on the death of the deceased while PW2 said that he conducted the post-mortem on 9/09/2024 who finds out that the said death was conducted about 72 hours, in normal calculation means the offence was committed on 6/09/2024 while PW4 said that they 9 found the deceased body on 8/9/2024. In the case of BAHATI MAKEJA vs REPUBLIC, CRIMINAL APPEAL NO 118 OF 2006 (Unreported) the Court considered discrepancies in the prosecution case if material corrode the credibility of the prosecution evidence whereas normal discrepancies do. See also MOHAMED SAID MATULA VS REPUBLIC (1995) TLR at page 3, where the Court of Appeal considered among other issues contradictions and inconsistencies in the prosecution evidence and the duty of the trial court to address the same. The Court held: "Where the inconsistencies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter" In the case at hand, there was inconsistencies and contradictions in the evidence of the prosecution witnesses on when the deceased died while PW1 said that he was informed on 7/09/2024 about the death of her husband. PW2 said that post mortem conducted on 9/9/2024 and it was about 72hrs. In my view I can say the offence occurred on 6/9/2024 while the charge sheet revealed that the offence occurred on 10 8/9/2024 hence those inconsistences and contradiction goes to the root of the case. It is trite law that every witness is entitled to credence and must be believed and his/her testimony accepted unless they are good and cogent reasons for not believing a witness. This is as per the case of Mathias Bundala vs Republic, Criminal Appeal No. 62 of 2004 CAT at Mwanza where it approved the case of Goodluck Kyando vs Republic (2006) TLR 363, where the court held that: “ it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless they are good and cogent reasons for not believing a witness”. Again the prosecution witness one PW3 said that the deceased was called by his children who are living at Mwabasabi to settle the land dispute, however she was not sure who among his children called but she said that deceased went to Mwabasabi but there was no direct evidence to prove that the deceased went there or he got any problem on his way, because the evidence shows that the incident occurred far away from Mwabasabi. Again PW3 told this court that one Mlekwa brought the phone to her informing her the death of her husband. PW3 added that Mlekwa got information from one Mongela (4th accused 11 person) unfortunately the said witness was not called as witness but also there was no evidence to prove the same. During the cross examination by Ms Baikane, when PW3 asked how did she knew that accused persons was the one who called deceased she replied that she heard the voice look like the voice of his children but, she did not know who among them was talking with her husband. So according to that PW3 was not sure if the one who called her husband was among these accused persons or is some else. Again PW1 who was a village chairman said that he doesn’t know who caused the said death while PW4 said that he was informed by the Bula Sita that he saw accused persons killing the deceased but unfortunately the prosecution side failed to call the said Bula who is a material witness and eye witness who witnessed the commission of this offence. In the premises I find that the evidence of prosecution witness is not credible hence unreliable. The important issue for consideration here is whether the prima facie case by the prosecution side has been sufficiently established to require them give their defense as per law. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is 12 charged with is always on the side of the prosecution and not on the accused person. It is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2002], and cemented in the case of Joseph John Makune v R [1986] TLR 44 at page 49, where the Court of Appeal held that:- "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities...” The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 (unreported) held that:- “Of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." It means the evidence must be so convincing that no reasonable person would ever question the accused’s guilt. See the cases of 13 Mohamed Said Matula v Republic [1995] TLR 3, Anatory Mutafungwa v Republic, Criminal Appeal No. 267 of 2010, Court of Appeal of Tanzania and Festo Komba v Republic, Criminal Appeal No.77 of 2015, Court of Appeal of Tanzania (both unreported). Since, there is no evidence that accused person committed offence, but there was variance of the evidence and the charge sheet on when the offence was committed and hence you cannot convict accused persons on that weak evidence. I am aware that the best evidence rule as provided under section 62(1) of the Tanzanian Evidence Act, Cap 6, R.E 2019. In fact, it says as quoted hereunder: 62.-(1) Oral evidence must, in all cases whatever, be direct; that is to say- a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds 14 that opinion or, as the case may be, who holds it on those grounds: The fact in issue here is who killed KILUMA NGOME HOPI. The relevant evidence ought to have been adduced by a person who saw the accused persons killing the deceased one Bulla Sitta (Material witness) however the same was not called to testify the same on the fact that he is at Kenya this court finds out that the same to be immaterial and that failure to call material witnesses renders the court to draw adverse inference that if at all the said witnesses were called, they could have tendered adverse evidence against the part. See the case of Boniface Kundakira Tarimo vs Republic Criminal Appeal no 350 of 2008 (unreported) the court held that: ‘’It is thus now settled that where a witness who is in a better position to explain some missing links in the party case is not called without any sufficient reasons being shown by the party, an adverse inference may be drawn against that party”. Should this Court exercising its full legal mind reach to a finding of guilty against the accused persons in the event they elect to remain mute in their defense? In this case, there is nothing established connecting the accused persons and the charge of murder. All that has been stated by the prosecution is the mere allegation that deceased person was killed by 15 the accused persons because they had land dispute not otherwise. For that reason, I find this case to be a proper case in which prima facie case by the prosecution has not been established in the required legal standard. That said, the accused persons are found to have no case to answer, consequent of which, they are all accordingly acquitted under section 293 (1) of the Criminal Procedure Act [Cap 20 RE 2019]. It is so ordered. DATED at BARIADI this 25th day of March, 2025. R.B. Massam Judge 16