efraim lutambi vs republic 1999 tzca 33 10 june 1999

IN Ti-DD COURT OP APPEAL OF TANZANIA -AT MBEYA ( CORAMi RAuLlJjlt t i t L , J .A .. 5AI:L\TTA, J . A . , And LUGrAKINGIRA. J . A CRIMINAL APPEAL NO. 30 OF 1996 BET v/EEN EFRAI I/I LUTJiMBI. . , ....................... APPELLANT AIT) TIES REPUBLIC...................................... RESPONDENT (Appeal from the Conviction and Sentence o f the High. Court o f Tanzania at I r in g a ) (Kyando, J . ) dated the 27th day o f February, 1995 in Criminal Sessions Case No. 43 o f 1.993 JUDGMENT OF TIIE COURT SAIIATTA, J. a ,2 This i s „a appeal from a judgment o f t i c High Court (Kyando, J . ) s i t t i n g at Irin g a in i t s crim inal ju r is d ic tio n . The Court convicted the appellant, Ephraim Lutarabi, o f the murder o f Lodina d/e Kisangaika (the deceased) on November 26, 1991, at Nundwe V illa g e in Kufindi D i s t r i c t , and sentenced him to death. The t r i a l in th is case was unusually short. There was only one witness on each side, a p o lic e in v e s tig a to r , D/Cpl. Mpenzwa (P W .l), and the appellant, As required by the p rovision s o f s . 192 o f the Criminal procedure Act, 1985 ( ;!the A c t " ), the Court conducted a prelim inary Hearing. Mr. Shio, Senior State Attorney, outlined the fo llo w in g fa c ts o f the case against the appellant; •:0n 26/11/91 at Nundwe in Mufindi D i s t r i c t tik; .?.ccused k i l l e d Lodina d/o Kisangaika. The accused confessed to the k i l l i n g . He stated that he hacked her with 3 lioe and b i l l hook. He b e lie v e d that the fa m ily of t.-.Ks deceased had k i l l e d his ch ild through wi tc h c ra ft. The cause o f death was b m in dwiiOcge. The accused made statements to tho p o lic e and The a p p e lla n t’ s response to that outline ox fa c t s was: : h l l the fa c ts are true but I did not intend to k i l l h e r . ” The learned judge (Mapigano, J . ) then prepared a memorandum o f the undisputed matters. I t reads as fo llo w s : :tMatters not in Dispute 1. The accused k i l l e d the woman Lodina d/o Kisangaika on 26/13./91. 2. He used a hoe and bi 11-hooJc to i n f l i c t the f a t a l blows. 3. Cause o f death was brain damage. 4. ccused b e lie v e d that the fa m ily o f the deceased had k i l l e d his ch ild through w itc h c ra ft. 5. accused made statements to the p o lic e and J.P. 6. Contents o f the autopsy r e p o rt. The appellant as w e ll as both counsel apendod t h e ir signatures to the Memorandum. Soon a f t e r t h is had been done, Mr. 31J.0 tendered the postmortem re p o rt, e x t r a - j u d i c i a l ^nd cautioned statements. The documents wore put in and marked E xh ibits P i, P2 and P3 r e s p e c ti v t l y . This was follow ed by an order by the Court that the t r i 1 would ooiH.ioiiC'* or. a date to be fix e d by the D i s t r i c t R e g is tr a r . The record o f the case does not contain any statement by the Court1 showing that the contents o f the Memorandum were read over and explained to the appellant as required by subsection (3) o f 3.192 o f the Act, The eaidence o f D/Cpl, Mpenzwa was as fo llo w s : on ITovember 30, 1991, fo llo w in g a rep ort o f murder which been rec e iv e d at the Mafinga P o lic e Station, he v i s i t e d Nundwe Village., He was nccompe.niod by one Dr. Mung’ ong’ o. In a bush in the v i l l a g e he saw a dead body which w s i d e n t i f i e d as that o f tile deceased. The body had fre s h wounds, on the head and neck, ly in g next to i t was a b lood-stained b i l l ­ hook. The V illa g e Chairman handed over to him a hoe which was a 13 &gad to have been used in k i l l i n g the deceased. Dr. Mung-ong’ o performed a postmortem on the die.u body on the spot. 7hcn the policeman returned to the p o lic e s ta tio n he discovered that ths appellant had made a e .utioned statement (Sxh. P3) to one Insp. Paul Leonard. Later the witness escorted the appellant to a Justice of the Peace before whom he (the ap p ellan t) made Sxh. P2. On b e h a lf of the ap pellant, Mr. Mkumbe, learned advocat has impeached the d e cis io n o f the learned t r i a l judge on the f ollow ing grounds: X. /he learned t r i a l judge erred in law and f a c t in basing the con victio n o f the appellant on the matters not in dispute .,t the Prelim inary He raring when the p rovision s of s. 192 (3) o f the Criminal Procedure Act wore not complied with. 2. ZT_/he e x h ib its P2 and P3 ( i . e . the e x t r a - j u d i c i a l statement and cautioned statement re s p e c tiv e ly )w e re admitted in evidence contrary to procedure as provided in s . 34 B (2) ( c ) , (d ) and (e ) o f the Tanzania Evidence £ct as w e ll as s. 192 (3) o f the CPa much to the prejudice o f the ap pellant. 3. /T_7he appellant should havc been convicted of manslaughter in the circumstances o f th is case. The learned advocate argued the f i r s t and second grounds o f appeal to geth er. We s h a ll also deal with those grounds in the same way. The learned advocate submitted that, since there i s nowhere on the record o f the cast., where i t i s in d ic a te d that the Memorandum o f Undisputed Matters was read over and explained to the appellant, the inescapable in feren ce i s that the requirements o f the mandatory p ro visio n s o f s . 192 (3) o f the *,ct were not complied with. That being so, the learned advocate went on to submit, the r e s u lt o f the non-compliance i s that no f a c t or document agreed or admitted in the Memorandum could be deemed duly proved under the p rovision s o f subsection (4 ) o f the section . The cornerstone o f the l a t t e r part o f the learned advocate’ s argument was Mt. 7479 Sff t . Benjami n Hole la v Republic £ £ 9 9 2 ? T.L.R. 121, a case in which i t was held J by th is Court, among other t a n ^ s , that, f i r s t i f , subsection ( 3 ) o f the auction imposes 3 mandatory duty that the contents of the memorandum must be re ,d and explained to the accused, and„ secondly, ’ /here the requirements o f subsection ( 3 ) o f the section were not complied with, the p ro v isio n s o f subsection ( 4 ) o f the s e ctio n cannot apply, with regard to E xhibits P2 and P3, Mr. Mkumbe contended that when those documents were tendered by the Senior Stnte Attorney the prelim inary hearing Jriad already been concluded and, th ere­ fo r e , at that stage they could p rop erly be tendered before the Court only by those who recorded them, namely, the Justice o f the Peace and Inspector Leonard. The learned advocate concluded his submission on the point by contending th at, PW.l having not been the recorder o f those statements, his evidence r e la t in g to them was hearsay, making the statements inadmissible in evidence unless the p rovisions o f s . 34 B (2 ) (c ), (d) and ( e ) o f the Evidence ^ct, 1967, were brought in to play, a step which was not taken. We have given the most earnest con sid eration to counsel’ s r i v a l arguments, and in the end we ...re o f the opinion that Ur. Mkumbe’ s argument that the d ecisio n in Hole l a 8s case supra governs th is case i s in c o n t r o v e r t ib le . Contrary to Hr. Sengwaji’ s submission, there i s nothing on the record o f the case from which i t can be i r r e s i s t i b l y in fe r r e d that the Memorandum o f Disputed Matters was read over and explained to the ap p ellan t. Before the accused and counsel are asked to append t h e ir signatures to a memorandum o f undisputed matters the contents j f the document should be read over and explained to the accused. This i s important because, as was pointed oi.it in Hole la * s case, i t i s the accused him self who must agree thr.t he admits or does not dispute the l i s t e d matters. Unlike in Hole la * s case supra there was another serious i r r e g u l a r i t y in r e l a t i o n to the p ro visio n s o f s . 192 o f the .let. While there was a reference in the I/Iemorandum to the making of the cautioned and e x t r a - j u d i c i a l statements by the appellant, those documents were not incorporated in to the Eemorandum, with the r e s u lt that while the making o f those statements was, subject to the mandatory requirements o f subsection (3) o f s . 192 o f the ^ct, to be deemed, under subsection (4) o f the s ection , to have been duly proved, the contents o f the statements required to be proved in the ordinary manner. Since no such p roof took place, we agree with. rlr. Mkumbe that the two statements must be excluded from the case. Once that i s done, i t cannot be disputed that the appellant having introduced a defence of s e lf-d e fe n c e in his evidence, the remaining evidence cannot constitute a basis f o r holding that the appellant was c rim in a lly responsible f o r the deceased’ s death. The fin d in g o f the learned t r i a l judge that the a p p e lla n t's acts were unlawful cannot, th e re fo re , be sustained. That opinion makes i t unnecessary to consider the merits or otherwise o f the th ird ground o f appeal. Before v/e consider what orders to make in t h is case, we wish to observe that the p rovision s o f s. 192 o f the "act are very use f i l l in the adm inistration o f crim inal ju s tic e . They were intended by the le g is la t u r e not only to reduce the costs o f crim inal t r i a l s in the country, but also to ensure that those t r i a l s arc, without prejudice to the p a r tie s , conducted e x p e d itio u s ly . I f the p ro visio n s are s t r i c t l y complied with., there should occur no problems Hole l a ' which t h is Court had to deal with in case supra or those wc have hod to deal with in the in s ta n t case. j\ny e x h ib it s , including cautioned and e x t r a - j u d i c i a l statements, which are not in dispute should h~ve them r e fe r r e d to and given e x h ib it numbers in the memorandum o f undisputed matters. The contents o f the r.i'.i.iorandum, including the exh ib ited statements, i f any, should be read over and explained to the accused ( i n a 1 nguage he understands), nd the fa c t that that has boon done should be r e f l e c t e d on the record. V7e have held that serious procedural i r r e g u l a r i t i e s occured at the beginning o f the hearing o f this case. What order or orders, then, should bo made in the c:.se? We have anxiously and c a r e fu lly considered that question, and, i n the upshot, vie are of the s e ttle d opinion that, notwithstanding the f a c t that the appellant has been in custody f o r a very long period in connection with the charge he faced, the nature o f the case compels us to order a r e t r i a l . For the foregoin g reasons, we allow the appeal, quash the c o n v ic tio n fo r murder and set aside the sentence death. We order that the appellant be r e - t r i e d as e x p e d itio u s ly as possible by another judge and a new set Of ------ th is 11ch day of June, 1999 a.s.L. E.^jiDiixira; JU3TIOE OF__ nPTRuL S.ii. JU.3TICS OP XP2SAL K. 3. K. LUG..KI NGIRii JU3TIC5 OF ^PPE.iL I c e r tix j'- that th is i s r. true copy of t h o r ig in a l. , I ill! ,■ ( A . G . :'jwARIJ;l ) DEPUTY REGISTRAR