19961122 TZCA Mwanza

.j IN THE COURT OF APPEAL OF TANZA..l\J'IA AT M\</ANZA CRIMINAL APPEAL NO. 174 OF 1993 BETWEEN JAMES NYAWELA • • • • APPELI.At'JT AND THE REPUBLIC • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tabora) ( Korosso -~ ... -~- '· Jo- } dated the 18th day of October, 1993 in JUDGEMENT OF THE COURT This appeal arises from the decision of the High Court (Korosso, J) convicting ~he appellant for murder and imposing on him the sentence of death. Very briefly the facts of the case were that the appellant was the half brother of the deceased woman. The appellant's full sister '"°" died, and it appears that the appellant suspected the deceased to have caused her d~ath, with the result that there was cold relationship between the appellant and the deceasedo On the night of the incident bandits entered the house of the t deceased and brutally atta~ked her to death using a panga. The prosecution case is that the appellant was one of the thugs but the · appellant flatly denied the charge. However, as already intimated, that defence was rejected by the High Court and the a.ppellant was accordingly convicted and sentenced as stated above • • \ ' - 2 - fa this appeal the appellant is represented by Mro Magongo, learned advocate while the respondent Republic is advocated for by Mr. Mbago, learned Senior State Attorheya Mr. Magongo had- filed only· one ground of appeal which essentially raised the issue of identification of the appellant as the culprit, but before arguing that ground he made an application for leave to argue an additional ground raising the issue of ineffective partici- ·pation of the assessors in the trial before the High Court, and we grant~d the applicationo We shall deal with the additional ground firsto In that ground learned counsel contended that the trial was a nullity as it was not certain from the record that the assessors did assist the trial judge. Elaborating on this, counsel cited the mandatory requirement of section 265 of the Criminal Procedure Act that all trials by the High C.ourt shall be with the aid of assessors, and section 177 of the Evidence Act which confers power on the assessor~ to put questions to witnesses through or by leave of the judge. Against this legal background, the factual situation as disclosed on the record is that the evidence as elicited by the assessors from the witnesses is lumped together. In other words the record does not show which evidence was elicited by which assessor. Counsel contended that in so lumping together the evidence elicited by the assessors one cannot be certain that the three assessors who were selected in this case were each afforded the oprortunity of putting questions to the witnesses. It may be that the evidence so recorded is that as elicited by two assessors only and that the remaining assessor was not given the opportunity to put questionse In the light of such uncertainty, counsel went on, the assessors were not afforded adequate opportunity to put questions to witnesses and thus participate 0. 0 ./3 . ... 3 - ' ' effectively in the conduct of the trial. To that extent therefore, Counsel concluded, the trial cannot really be said to haYe been with the_ aid of the assessors, and so it was a nullity for violating the mandatory provisions of section 265 of the-Criminal Procedure Act cited above. In support of this contention learned Counsel referred us to our own decisions in the cases of .£Y.J?..lj..~~~b~, Criminal Appeal No. 18 of 1990; .K_~~~u:)_~e 1'1Ia~e~~§llld Ano_!~, Criminal Appeal No. 57 of 1990; Kul11_a He½,e _and 3 0►th~rs v. R, Criminal Appeal No~ 59 of 1990; ~~sa Bul~ba v._B,, Criminal Appeal No. 96 of 1991 and Cosmas Pas1Eal_~Another v. R 1 Criminal Appeal No. 86 of 19920 In all these cases t_he trial was held to be a nullity. Responding to these arguments Mr. !%ago took the view that all the a~sessors were afforded the opportunity to put questions to witnesses, and that the series of cases cited by Mr. Magongo in which the trial was held to be a nullity were.distinguishablee The crucial question which arises from Mr. Magongo 1 s submission in this ground is: Were the three assessors afforded the opportunity to put questions .to the witnesses during the trial before the High Court? We are inclined to uphold Mr. Mbago 1 s view that they were. The record shows that in respect of each witness the trial judge wrote 'Assessors:-i 1 and then proceeded to :::-ecord the evidence elicited from 1 the witness including the accused. The amount of the evidence so recorded varies from one witness to another; for some witnesses longer passages were recorded than for others. Accepting the record as it is, we think that what happened is that the trial judge did give each of the three assessors the opportunity to put questions to each witness and recorded the answers thereto in a common paragraph or paragraphs instead of recording separately the evidence elicited from the witness by each assessor. We do not share •••• /4 \ I 4 - Mr. Magongo's apprehension that it is possible that some assessor or assessors were not given the opportunity to put questions, and that the evidence so recorded constituted answers to the questions put by one or two assessors onlyo We increasingly are of the view that the record as it stands could not reasonably admit of such a possibility. For, by writing ' 1Assessors:;' and then proceeding to record the evidence, the trial judge clearly shows that he had invited the assessors to ask questions, and that he was ready to record the answers given in response to their quest:j_ons. Mro Magongo advanced no ground, and looking through the record we could find none, to suggest that the trial judge gave or might have given the opportunity for asking questions only to two assessors and denied the third assessor such opportunity. Admittedly the procedure adopted by the learned trial judge was wrongo The learned judge should have specified the assessors by names or by numbering them serially and under each of them record separately the evidence given in answer to the question or questions put to the witness by the particular assessor. Where the assessor chooses not to exercise the power to ask questions this should be reflected by endorsing on the record accordingly, for example, Assessor 1: Nil. We stress the need for th.e trial High Court to follow the correct procedure by ensuring that the assessors are afforded the opportunity to put questions to witnesses and thereby ensuring that the trial is with the aid of assessors. There have been a number of cases, including those cited by Mr. Magongo earlier on where non- observance of the correct procedure has led to the trial being declared a nullityo In the instant case, however, we think that the irregularity was not fatal. For, as we have held, the assessors were afforded the opportunity to put questions to witnesses and the evidence elicited in response o o • o/5 - 5 thereto was duly recorded. The only flaw was that the trial judge did not record separately the evidence so elicited by each assessor; instead he lumped it up together, as it were, under the common heading ;,Assessors: n It is apparent that such irregularity did not affect lhe contribution ~f the assessors to the conduct of the ! trial. It therefore becomes further apparent that this case is distinguishable from the 5 cases cited by Mr. Magongo including the The five cases were set out at the beginning of this judgement. In all of them this Court held that the assessors were not given the opportunity to put questi'ons to the witnesses. Consequently the trial in each case was without the aid of assessors and was a~ordingly declared to be a nullityo Unlike in those cases, however, the irregularity in the present case did not affect the participation of the assessors in the proceedings. In other words where the irregularity does not prevent the assessors from · making their input in the trial process the irregularity is harmless. This ground of appeal, therefore, fails. We turn now to the remaining ground of appeal concerning the identification of the appellant. Vir. Magongo submitted that his -client was not identified sufficiently or at all as the murderer of the deceased. The identification of the appellant depended entirely on the evidence of the two daughters of the deceased, PW1 and PW2 1 who w~re sleeping in the same house with the deceased on the fateful nighto The witnesses said that they identified the appellant as being among the bandits who entered their house and attacked their mother to death using a panga. They went on to say that after the bandits had left the scene they raised an alarm and told the villagers who responded to the alarm that their uncle,· the appellant, was one of the invaders. This incident happened at about 1.00 a.m. and th~re was evidence showing that the appellant was not arrested u...~til "0 •• /6 - 6 - much later about 11 porn. even though he was at the scene with the other villagers. Then Mr. Magongo wondered that if it is true that PW1 and Ph/2 identified the appellant that night and mentionedh:i.m to the villagers, why was the appellant not arrested immediately? Why did it take up to 22 hours before arresting the appellant'? The fact that it took so long, Mr. Magongo submitted, implies that PW1 and PW2 told lies when they said that they disclosed to the villagers that night that the appellant was the culprit, and this in turn leads to the conclusion that PW1 and PW2 did not mention the appellant to the villagers because they did not identify him during the incident. However, there was clear evidence of PW3, one of the villagers who ) I answered the alarm, tha.t on arriving at the scene PW1 and PW2 informed him that their mother had been killed by their uncle, the appellante There is no apparent reason why PW3 should not be believed on this point. There is further evidence showing that the matter was reported to the police who after some time arrived at the scene of crime and arrested the appellant at 11 p.m., and that before that the appellant had had his hands tied with stringso The position therefore is that the appellant was formally arrested by the police at 11 porno but before that he had been restrained by the villagers. That therefore should take care of Mr. Magongo's concern on this pointo Some doubt was expressed whether PW1 and PW2 could really identify the appellant through the torch light which, according to the evidence was being flashed on his b~ck by his companion, and also considering that the witnesses were in a state of fear and confusion. However, the appellant i·1as well known to the witnesses; he was their uncleo They lived in the same village and were neighbours. The witnesses used to visit him and have meals with him.· During the attack that night the appellant was in front leading his companion to the room where the deceased was sleeping, and in the course of 7 doing so the appellant's companion flashed torch light from behind which illuminated the appellant's head, neck and back thereby enabling the witnesses to identify the appellant. The witnesses also heard and recognized the appellant's voice, which was familiar, t, when in the course of leading his companion he told him, Ucome this . way• 1 , and when upon reaching the deceased he said to his companion; ii strike E strike 2" and the companion accordingly slashed the deceased with a pangao We are satisfied that takjng into account all these circumstances the appellant was adequately identified as the killer of the deceased. The strained relations between the appellant and the deceased especially after the death of the appellant's full sister, could have provided F~ Lo NYALALI CHIEF JUSTICE Lo M. MAKAMg JUSTICE OF APPEAL Ro H, KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original.