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IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSSA; J.A., LILA, J.A. And MWAMBEGELE) CRIMINAL APPEAL NO. 241 OF 2016 CHRISTIAN JONATHAN ................................................................. APPELLANT VERSUS THE REPUBLIC ....................................................................... ~ .. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Bukoba) (Matogolo, J.) dated the 1st day of March, 2016 in Criminal Session No. 29 of 2014 JUDGMENT OF THE COURT 5th December &..... 2017 LILA, J.A.: The High Court of Tanzania Bukoba sentences Christian Jonathan, the appellant to death upon finding him guilty of the offence of murder contrary to section 196 of the Penal Code Cap 16 R.E. 2002. He was together with Leonidas Petro accused of murdering one Hamza in 11 th day of January, 2013 at Lyengoma Village within Missenyi District in Kagera Region. As it were, Leonidas Petro (then 1st Accused) was acquitted for lack of evidence. Aggrieved, the appellant have preferred the present appeal. 1 During trial, the prosecution marshalled seven witnesses and, in defence, only Leonidas Petro and the appellant gave evidence. As reflected in both the assessors' opinions during summing up and the trial court judgment, the appellant's conviction relied much on evidence by Editha Petro (PWl) who witnessed the incidence right from the time Leonisas Petro and the appellant arrived at the Pombe shop to the time the decease passed away. Briefly, PWl gave evidence to the following effect. On 10/01/2013 at night time (09:00pm) she was at her residence at Lyangoma Village. There went Leonidas Petro, Ndaise Lyemegi and Hamza at the nearby pombe shop but Leonidas Petro left his bicycle which had a bas in its carrier outside the club and asked PWl to keep watching. After a while PWl said Hamza pushing the bicycle along the road leading to Mtukula. Later Leonidas Petro and Ndaise went out only to find the bicycle amis and asked PWl the where about of it. PWl replied that Hamza (the deceased) had taken it. The two traced the deceased, arrested him and took him to PWl. The deceased denied taking the bicycle. They tied up the deceased, and together with PWl left to the village chairman. As they were heading to the village chairman the appellant joined them and asked the deceased to bring back 2 the bicycle. The deceased maintained that he had no such bicycle. The appellant then beat the deceased with a stick known as "mlalo" on the shoulders. As they passed over the appellant's house the appellant told his wife to give him two other sticks and was given with which he continued beating the deceased Kiwamka and Akiza joined and told the appellant to shop beating the deceased. Later the deceased asked to be mentioned so that he could show where he had hidden the bicycle. The deceased retrieved the bicycle but had no bag in the appellant's banana farm and the later told the deceased to carry it as they headed to Kitongoji chairman. When asked about the bag, the deceased said he did not know where it was. Then the appellant continued beating the deceased while saying "mimi kamanda hakuma mtu mwingine kumshika ila mimi kamanda nimemshika." Then PWl was with Leonidas, Ndaise, Kiwamka, appellant and deceased. That the appellant prevented others from beating the deceased while boating himself that "mimi kamanda nimemshika." Upon arrival at the Kitongoji chairman one Gozibert Jeremia's (PW3), the deceased fall down after being severely beaten with the two sticks till they broke into piece. The appellant said the deceased who was exhauster tired was pretending and forced him to get up but the deceased could not do so. The deceased could not do so. The 3 deceased was put on the bicycles and Leonidas punishes it to Kitongoji chairman (PWl) who then called militiamen to assist Leonidsas and the appellant in taking the deceased condition was worse, the police station. PWl then left at 07.30 on 11/01/2013. PW3 testified that Leonidas Petro and the appellant took the deceased to him while in worst condition at about 06.00 in 11/01/2017. The decease had would on him his right leg and his hand was swollen, that he informed the village chairman one John Mbuga (PWS) and police and was told to look for transport for taking the deceased to hospital but while ding such effects, the deceased passed away. He said the appellant admitted beating the deceased so that he (deceased) could show kept the bicycle. Godwin Martin Kamuzora (PW4), a militiaman, responded to the call by PW3 whereat he found the lying in his stomach with bad condition and no sooner had they secured transport to take him (deceased) to hospital, he (deceased) passed away. John Mbuga (pWS), the village Executive Officer of Bubale Village said he was informed by PW4 the arrest of the deceased who was severely beaten and directed that he ( deceased) be taken to hospital but before that could be done he was informed that the deceased had died. The he went to the scene where he saw the dead body and Leonida's and the appellant under arrest who were 4 later taken by the police. Rwebusiga Benedict Barongo (PW6), a Medical Officer conducted the autopsy and found that the cause of death was both internal and external haemorcharge and filed a postmortem report (exh. Pl). E5518 D/Cpl Laus went to the scene and drew a sketch map (exh. P2). In respective defences, Leonidas Petro and the appellant vehemently denied involvement in the commission of the offence. Leonidas Petro had it that on 11/01/2013 while I his way back home from the open market (gulio) with a his bicycle on there was a bag containing clothes he had bought, he passed over a pombe shop and parked it outside entrusting his bicycle to PW1 to keep an eye. Later, he found it amis and was told by PW1 that the deceased had taken it. Having not permitted the deceased to taken it, he told those in the club who went to trace for tea appellant while he went to report the matter to the ten cell leader. That, the following day (11/01/2013) he was informed by the Kitongoji chairman that his bicycle was found along Mtukula road and he went to collect it where he found the deceased lying while in bad condition. That he was then arrested in connection with the offence. He said neither of the prosecution witnesses gave in criminative evidence against him. 5 On his part, the appellant stated that on fateful night he was guarding his maine in his farm against wild pigs at his farm located at Kamwena at the Uganda border. He said he was arrested by militiamen along Mtukula road on 11/01/2013 going to buy medicine for his sick child. He discounted PWS evidence against him alleging that there were grades between them caused by a Shamba dispute. Basing on the above evidence, the trial court found Leonidas Petro not liable acquitted him but the appellant was held responsible convicted and was sentenced to death. The appellant raised six grounds of appeal in his memorandum of appeal he filed on 29/11/2016. For a reason soon following, we see no reason to reproduce them. The appeared at the hearing of the appeal and was represented by Ms. Jacquiline Evaristus Mrema, learned State Attorney who held a dock brief. The Respondent Republic had the services of Mr. Nestory Paschal Nchiman, and Ms; Chema Maswi, learned State Attorney. At the outset Ms. Mrema urged the Court to disregard the appellants memorandum of appeal and instead, was ready to argue in the grounds of 6 appeal raised in the supplementary memorandum of appeal filed in Court on 27/12/2016. She, however, in the course of arguing the appeal, opted to drop grounds 2 of appeal. In the circumstances on the argued in respect of only two grounds. We reproduced them as hereunder:- 1..... . 2... . Elaborating on ground of appeal Ms. Mrema argued that the trial court relied in PWl's evidence who it found credible to convict the appellant. She was of the view that her credibility was questionable in view of the contradictions and discrepancies obtaining in the prosecution evidence. In an attempt to show the apparent discrepancies Ms. Mrema said while PWl in her testimony at page 14 said she went to Kitongoji chairman, (PW3), the later did not mention PWl as being one of those who went to his residence and even PW4 who appeared at PW3 did not mention Pwl as one of those he found thereat. In view of that, she said it is doubtful if really PWl witnessed the incidence. She said that PWl's evidence is not trust worth. Arguing on ground two, Ms. Mrema stated that the case against the appellant was not established to the required standard of proof beyond 7 doubts she said even the trial judge schedule her doubted at page 97 lines 15-19 of her judgment where she said failure by other person, namely Ndaise Lyemegi Kiwanuka and Akiza who were with PW1 during the evidence denied the Court information as to who actually killed the deceased. The insisted that absence of evidence by such persons left doubts which ought to had been translated in favour of the appellant. The above notwithstanding, before retiring her case, the court raised suo motu, the point of law whether, in view of the summing up done to assessors, their respective opinions and the trial judge's judgment, the assessors were properly directed on vital points upon which the case was determined. We drought to her attention to the following points: 1. The appellant's defence to property available under section 18 of the Penal Code. Reference here being that the appellant might have been struggling to have the bicycle and bag belonging to Leonidas Petrol and which were stolen by the deceased recovered. Two, that to prove murder, elements establishing malice aforethought should to established and what constituted malice aforethought as stipulated under section 200 of the Penal Code, 8 Third, the effect of failure the prosecution to call crucial witnesses and how and when the Court can draw an adverse inference. We referred the counsel to page 97 and 98 of the record where the trial judge, in her judgment stated that Ndaise and Kiwanuka who were mentioned by PW1 to have had witnessed the incident were not called by the prosecution to testify without any reason and the trial judge stated that the Court may draw an adverse inference to the prosecution evidence as such at deny the Court to know important information which would assist the Court in its finding. We also referred the learned counsel to page 74 of the record where the trial judge when summing up to assessors judge said; "Gentle (sic) assessors, the 2'1d accused Christian Jonathan in his defence also denied to have beaten the deceased and cause (sic) his death. He stated , that in 10/01/2013 during the night time he went to his farm at Kamwembe Uganda boarder to guard his maize against wild pigs. He returned back home the following day morning and found his child sick ... But at the time when Hamza is said to have stolen the 9 • bicycle and beaten up he was not present. He was at in his farm... Gentle (sic) assessors, the learned State Attorney asked the 2!7d accused of told (sic) his advocate the defence he intended to give which is the defence of alibi. He replied saying he informed his advocate on such defence which is defence of alibi but they did not file notice in court under S.194 (4) of the CPA that the 2!7d Accused will rely on the defence of alibi. .. " In determining the issue of alibi, the trial judge at page 98 of the judgment, she stated: 11 first the 2!7d accused has raised defence of alibi although he did not file notice of his intention to rely on the defence of alibi as required under section 194 ( 4) of the Criminal Procedure Act;. nor did he furnish particulars of the alibi to the prosecution before they closed their case as required under subsection 5 of 10 • the above mentioned section. There is no reason advanced by the Z7d accused even by his advocate for their failure to do so. I therefore accord no weight to such a defence... " Fourth, Credibility of a witness. During summing up to assessors, at page 68 of the record the trial judge simply told the assessors that:- - " Gentle (sick) assessors PWJ is the only witness in the prosecution who happened to be present from the time Leonidas entrusted her with the bicycle to the time when the deceased was sent to the Kitongoji chairman one Gozibert Jermiah. The other witnesses were just told what transpired from the beginning... " The same was repented at page 75, thereafter the trial judge went to summarize her testimony. Nothing was said about the credibility of PWl and how the same could be determined. Instead, at page 100 and 101, the learned trial judge in her judgment stated that:- 11 11 And it is trite that every eye witness entitled to credence and must be believed and his evidence be accepted unless there are good and cogent reason for not believing him. See Goodluck Kiyando V.R, [2006] TLR 363 (CAP). Therefore believe what PWl has told the court is what actually has happened and I have no reason to disbelieve her." Two: Malice aforethought At page 76, during summing up to assessors, in respect of malice aforethought, the trial judge stated: 11 Normally malice aforethought can be measured by looking at different factors such as the type and size of weapon used. The amount of force used and the number ofblows inflicted upon the deceases and part of the body where inflicted. The conduct of accused before, during and after the killing, the utterances made by the accused before, during. and after the killing and the like. 12