NA TZHC Tabora 1

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J.A., MBAROUK, l.A., And MASSATI, J.A.) CRIMINAL APPEAL NO.283 OF 2006 BENJAMIN ~PULA @ ZENGO ......................................... APPELLANT VERSUS THE REPUBLIC ••••••••••••••.•••••••••••••••.••••••••• ■-•••••••••••••••••• RESPONDENT (Appeal from the conviction of the RESIDENT MAGISTRATES' COURT AT SHINYANGA-EXTENDED JURISDICTION) (LYAMUYA, PRM E/J) dated 11th May 2005 in Criminal Session No. 4 of 2005 JUDGMENT OF THE COURT 30th October & 5 th November,2009 KIMARO, J.A, The Court of Resident Magistrate at Shinyanga under its extended jurisdiction powers, before Lyamuya, PRM, E/J convicted the appellant of the offence of murder contrary to section 196 of the Penal Code, [CAP 16 R.E.2002] and he was sentenced to death. The appellant was alleged to th have on 8 of October, 1996 intentionally murdered NZOBE D/O KASHINJE at Hinduke village within Maswa District in Shinyanga Region. The evidence that was adduced in the trial court showed that the appellant was the widow of the late Jinasi Pombe who died in 1992. At the time of his death, he was survived by a wife Nzombe d/o Kashinde the deceased in this case, and two daughters, among them being Kija Jinasi (PWl), who was living with the deceased, and she was the only eye witness to the incident that caused the death of her deceased mother. The late husband of the deceased also left to his wife and daughters 30 cows for inheritance. From the testimony of PWl, the appellant and one Willy s/o Wilson Charles are brothers and are grandsons of her deceased mother. Sometime in September 1996 the two brothers approached their deceased grandmother claiming that they were entitled to inherit part of the cows left by the late Jinasi Pombe. The deceased became adamant that they -were not entitled to such inheritance. The appellant and his brother Willy were discontented by the answer their deceased grandmother gave, and 2 -· they retaliated by threats to the deceased that she would not live to benefit from the cows. th On 8 October 1996, at night, the appellant and Willy invaded the one roomed house of the deceased which she shared with PWl. Before the invasion, they knocked at the door but PW1 did not respond. They then banged the door, forcing entry into the house, and while Willy was armed with a "panga", the appellant had a torch. PW1 said they warned her not to raise alarm. With the assistance of the torch light which the appellant had directed to the deceased, Willy slashed the deceased on the head and the chest several times with the "panga", seriously injuring her. PWl's further testimony was that after the appellant and Willy had left, she reported the incident to Ndoile Lameck (PW2), their neighbour, who responded immediately by raising an alarm commonly known as "mwano." Majingwa Minoja (PW3), the deceased's son was among the persons who responded to the "mwano" and rushed to the scene of crime. All witnesses said the deceasea-··made a dying· declaration that the appella·nt ana-willy were the ones who injured her, the motive being that they wanted the cows left to her by her deceased husband, and she kept on repeating the dying declaration as she was taken to hospital where she died after few 3 hours. The witnesses said the deceased remained conscious all the way to hospital and she was still speaking, even when was under treatment. In terms of the post-mortem examination report, admitted in court without objection as exhibit Pl, the deceased was severely injured, and she died because of shock due to loss of blood from multiple wounds. Exhibit Pl shows further that the deceased "had cut wounds at the left side of the head involving the parigtal bone with exposed brain cut wound on the left hand, and amputated left arm." The trial court was satisfied by the identification of the appellant made by PWl, the sole identifying witness. The trial court cautioned itself of the dangers of relying on the identification made by torch light during night time, but she was satisfied that this case fell in the exceptional circumstances. That PWl knew the appellant and Willy before, as they are her relatives, the torch light was not directed to her but to her deceased mother, as such she was able to see what was taking place through the torch light. She was at a close range because tier oed was close to that of her deceased mother. It was the second time the appellant and Willy went to their house, initially they went there at 7.00 p.m. to request for fire to light their cigarette qut the deceased refused their 4 request. During that visit, Willy had the "panga" and the appellant a torch. Another piece of evidence considered relevant by the trial magistrate was their (Willy and the appellant) failure to respond to the "mwano", to assist in escorting the deceased to hospital, attend the funeral and the fact that they escaped from the village and until today, Willy has not been arrested. The trial magistrate was further satisfied that "the deceased made the dying declarations while she was conscious, in full possession of her faculties and her capacity to talk had not fluctuated, therefore what she said was not a fabrication." The trial magistrate's finding was that the appellant's defence was full of lies. · In his defence the appellant denied commission of the offence. The trial magistrate did not believe him. Being conscious that the prosecution has the duty of proving the charge beyond reasonable doubt and that and it must not be based on the weakness of the defence even where the accused tells lies, she observed that the appellant's lies in this case assisted in building the prosecution case. She - . -- then-convicted the appellant and sentenceffl1im to deatn:--- --·---- .. --- Being aggrieved by the conviction and the sentence, the appellant filed four grounds of appeal. The first ground .of appeal challenged the identification of the appellant claiming that it was doubtful. The second 5 ground concerns the dying declaration, contending that it was made under difficult circumstances and there was no assurance to its accuracy. As for . the third ground, the complaint is the assessment of the appellant's defence and the reliance on it by the trial court to support the prosecution case. The last ground of appeal was filed in a supplementary memorandum of appeal and the complaint is that the proceedings were a nullity for lack of a proper summing up to the assessors. In this appeal Mr.Kamaliza K. Kayaga learned counsel appeared for the appellant and Mr. Justus Mulokozi Principal State Attorney for the Respondent/Republic. In arguing the appeal the learned counsel for the appellant opted to start with ground four. He contended that there was an improper summing up by the trial magistrate to the assessors and that vitiated the proceeding. He referred the Court to page 32 of the record of appeal which contains a summary of the summing up and claimed that since the summing up is given in a point form without an elaboration; it is difficuit to- say-from-the ·record whether the assessors ·~ere ·properly guided, and that affected the outcome of the case. Specifically referring to point 9 which say: "Satisfaction case proved by the prosecution beyond reasonable doubt" the learned counsel for the appellant said it was a 6 dangerous remark and it adversely influenced the assessors. To bolster his argument, the learned counsel for the appellant cited to us the case of ALLY JUMA MAWERA VS R. [1993] T.L.R. 231. He prayed that this ground be allowed. On his part the learned Principal State Attorney supported the conviction and sentence. He admitted the shortfall in the record of appeal about the summing up, saying that since it is in a point form, it is difficult to ascertain on how appropriately were the assessors guided. If there was any misdirection, submitted the learned Principal Attorney, that is the fault of the court and the Republic should not be prejudiced. The learned Principal State Attorney said what should guide the Court is the question whether the manner in which the trial magistrate summed up to the assessors occasion any miscarriage of justice. In the event the Court will find that there was a miscarriage of justice, it should order a trial "de nova". On this ground of appeal, what the record of appeal reflects at page 32 on the summing up is as follows: 7 "1. PWl Kija identify (sic) of the accused at the scene. (a) Prior knowledge of the accused/relative (bJ Distance (c) Torch light ( d) Dying declaration (e) Time at the scene (f) Credibility (2) PW2 Neighbour Ndebile (a) Dying Declaration - Witnessed body injuries - Credibility (3) PWJ: Son of the deceased and his evidence. (4) The PW4 arresting accused during burial. (5) The dying declaration 8 (6) The ingredients of murder (7) Prosecution summary and reply defence (8) Motive to kill and malice (9) Satisfaction case proved by the prosecution beyond doubt Assessors: We pray for time to deliberate on our opinions. Order Case to proceed at 11.00 P.M.(sic) to give time to the assessors to deliberate. Mrs A.T.Lyamuya PRM EXT.J. 10.50 A.M. On our part, we entirely agree with Mr. Kayaga, learned counsel and Mr. Mulokozi, learned Principal Attorney that it is difficult to ascertain from · {I!:---· the point form summary of summing up to the assessors -;-how-the-tria magistrate guided the assessors. Section 298 (1) of the Criminal Procedure Act, [CAP.20 R.E.2002] requires the judge, or a resident magistrate exercising extended jurisdiction for that matter, at the close of 9 the case for both sides to sum up the evidence for the prosecution and the defence to the assessors and require the·m to give their opinion orally as to the case and record their opinion. (Emphasis added). The note form summing up to the assessors does not comply with the provisions of section 298(1) of Cap 20 because it does not give an elaboration of what the witnesses said. Worst still, it does not contain any point of guidance for the defence evidence. In the case of ALLY JUMA MAWERA (supra) the Court said the: "1. When summing up to the Assessors, the Trial Judge should as far as possible desist from disclosing his own views or making remarks or comments which might influence the Assessors one way or another in making up their own minds about the issue or issues being left with them for consideration: 10 1. The assessors should be made to give their opinion independebtly based on their own perception and understanding of the case after the summing up; the Judge makes his views known only after receiving the opinion of the assessors and in the course of considering his Judgment in the case. 2. Even though the Judge committed the error by commenting on the appellant's credibHit:y, this error did not really affect the opinion of the assessors; had it influenced their opinion the trial would have been a nullity." Both the learned counsel for the appellant and the learned Principal State -- - , •• -· ....... ~ - - - - - - - - - - - - - @>• • -----. Attorney observed, correctly in our view, that the impression one gets from point no.9 is that, the assessors were told that there was satisfactory proof of the prosecution_case._ As we have indicated, since there is nothing on the point form summing up to the assessors showing that they were told 11 anything about the defence evidence one can hardly disagree with the views expressed by the learned counsel. It is an established principle of criminal law that an accused person is entitled to an impartial trial. Where the Court sits with assessors they are part of the trial and they are required to be independent. In the case of LUSABANYA SIYANTAMI VS R [1980] T.L.R. 275 the Court said "it is improper for the trial judge to make an impression of the testimqny to an eye witness known to the assessors, as such conduct was likely to improperly influence the assessors." The assessors should always be guided towards making an independent opinion. They should not in any way be influenced. See also the case of ALLY JUMA MAWERA (supra) In this appeal we are satisfied that there was an improper summing up to the assessors and that occasioned a miscarriage of justice on the part of the appellant. The proceedings thereto became a nullity. We thus allow this ground of appeal. Since this ground suffices to dispose of the . !]>:--------------- appeal, we will not deal with the other grounds. We thus declare the proceedings in the trial court a nullity and we remit the file to the High Court for. a. trial "de nova" before a different judge and different set of assessors. It is so ordered. 12