20060227 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA . (CORAM: MUNUO, J.A., MSOFFE, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 131 OF 2003 BETWEEN HATARI S/O MARCO ............................................ APPELLANT AND THE REPUBLIC ..... ■ •••••• I I •• ■ ••••••• I ••••••• ■ ••• ■■ •• ■ ••• ■ I ■ .RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Mwanza) (Mchome, J.) dated the 3 rd day of July, 2003 . in Criminal Sessions Case No. 37 of 1996 JUDGMENT OF THE COURT ------------------- MUNUO, J. A.: In Criminal Sessions Case No. 37 of 1996 in the High Court of Tanzania at Sengerema, the appellant was charged with the offence of murdering one Malindi d/o Shigela on the 31 st August, 1994 at . 2 Mwangika Village in Sengerema District within Mwanza Region. He was convicted and sentenced to death by hanging. Aggrieved by the conviction and sentence, he lodged the present appeal. The deceased, Malindi Shigela, was 'the grandmother of the sole eye witness, P.W.1 Limi d/o Pastory who was aged 6 years when the killing occurred. She was then staying with her young brother at the home of the deceased. She deposed that the appellant went to the deceased's home and asked P.W. 1 if the deceased was around. P.W. 1 told the appellant the deceased was not in so he went away. Later, the appellant returned with the dec~ased; they were talking. The deceased reached home and sat down. Suddenly the appellant pushed her down and cut her with a panga causing instant death. The deceased's postmortem examination report, Exhibit, Pl states that she died from head injury and haemorrhagic shock. Having fatally slashed the deceased, the appellant ran away with the blood. stained machete. 3 Then, P.W. 1 took her young brother and she went to report the killing to her neighbours. She told her ten cell leader, P.W'. 2 Abel Ipula that the deceased was murdered by Hatari Marco. Upon an alarm being raised, villagers converged at the scene of crime. The appellant also responded to the alarm but left shortly after. As the police combed the area searching for the panga, they recovered it in the farm of the brother of the appellant. The said panga was not tendered in court because the police officer who recovered it had since retired and could not be traced for service. The appellant gave a sworn defence denying killing the deceased. He stated that he too responded to the death alarm and went to the home of the deceased where he saw the body. He said that no suspects were named at the scene of crime and he was not a party to the murder. He conceded, during cross-examination, that P.W. 1 knew him because he used-to visit the deceased. Mr. Muna, learned advocate, represented the appellant. He preferred three grounds of appeal complaining that the learned trial 4 Judge failed to record the ages of the asses.sors and further failed to · accord the appellant an opportunity to object to the assessors the learned judge selected to assist him in the conduct of the trial so the trial was flawed by these irregularities and ought to be nullified and a retrial be held. Furthermore, Mr. Muna faulted the learned trial judge for convicting on the sole testimony of P.W. 1, the only eye witness, without warning himself of the dangers of convicting on the uncorroborated evidence of P.W. 1. Counsel for the appellant cited Section 265 of the Criminal Procedure Act, 1985 which· requires assessors to assist in the conduct of murder cases and faulted the learned judge for omitting to record the ages of the assessors to ensure that the assessors who assisted him were aged between 21 and 60 years as is mandatory under the provision of Section 266(1) of the Criminal Procedure Act, 1985. Counsel further criticized. the trial judge for not according the appellant an opportunity to object to the selected assessors. He · referred us to the case of Tongeni Naata versus Republic (1991) . TLR 54 wherein the Court held that failure to give an accused an 5 opportunity to object to the selected assessors would not always be fatal. The failure of the trial judge to record the ages of the assessors coupled with the failure to accord the appellant a chance to object to any of the assessors, counsel contended, prejudiced the ' appellant so the trial should be nullified and a retrial be ordered. On ground three of the appeal, counsel for the appellant maintained that the learned judge occasioned a failure of justice by not warning himself on the dangers of convicting on the uncorroborated evidence of the only eye witness, P.W. 1 Limi Pastory, citing the case of Anangisye Masendo Ng'wang'wa versus Republic (1993) TLR 202 as authority on this. Attacking the credibility of P.W. 1, counsel for the appellant observed that she told the first assessor that she did not see the appellant cut the deceased with a machette and yet in her examination in chief and during cross-examination she had stated that she saw the appellant killing the deceased with a machette. Counsel also pointed out that although P.W. 1 said that the appellant 6 threw the machette behind the deceased's house after killing her, the machette was not recovered behind the said house but in the farm of a brother of the appellant so P.W. 1 was not telling the truth. Had the trial judge considered these discrepancies, he would not have convicted the appellant for murder, counsel maintained. He prayed that the appeal be allowed. Supporting the conviction and sentence, Mr. Kakolaki, learned State Attorney, urged us to uphold the same. Conceding that the trial judge omitted to record the ages of the assessors and that the record is silent on whether the appellant wa~ accorded a chance to object to the assessors if any, Mr. Kakolaki contended that the said irregularities were minor for they did not occasion injustice to the appellant. considering that assessors fully participated in the trial as the record speaks for itself. With regard to ground three of the appeal, the learned State Attorney contended that P.W; l's assertion that the appellant fatally assaulted the deceased with a machette was corroborated by the appellant's admission of the killing on the 26th May, 1999 and also on the 19th June, 2002 his plea was taken .. 7 before Nchalla, J. as he then was, and also before Mtotela, Principal Resident Magistrate, Extended Jurisdiction, respectively. The learned State Attorney prayed that the appeal be dismissed for lack of merit. The issues before us are whether failures to record the ages of the assessors and to accord the appellant an opportunity to object to ' the assessors occasioned injustice to the appellant and therefore justify nullifying the trial. ' We are clear in our minds that murder trials require the assistance of assessors aged between 21 years and 60 years as provided for under Section 266(1) of the Criminal Procedure Act No. 9 of 1985. We are further of the firm view that in a murder trial, the trial judge must sit with at least two assessors as stipulated under Section 265 of the Criminal Procedure Act No. 9 of 1985. We are, furthermore, aware of the case of Laurent Salu & 5 Others versus . Republic Criminal Appeal No. 176 of 1993, Court of Appeal of 8 Tanzania {unreported} in which the Court observed and we quote Kisanga, J. A. as he then was, in extenso: · Admittedly the requirement to give the accused the opportunity to say whether or not to object to any of the. assessors is not a rule of law. It is a rule of practice which, however, is now well established and accepted as part of the procedure in the proper administration of criminal justice in the country. .:. The rule is designed to ensure that the accused person has a fair hearing. Thus in order to ensure a fair trial and to make the accused person have confidence that he is having a fair trial, · it is of vital importance that he be informed of the existence of this right. The duty to inform him is on the trial judge, but. if the judge 9 overlooks this, counsel who are officers of this court have equally a duty to remind him of it. On the omission of the trial judge to record the ages of the assessors, we are of the firm view that the ~aid omission is a curable irregularity which did not go to the root of the case unlike in the case of Laurent Salu & 5 Others where the trial judge did not give the assessors an opportunity to ask the witnesses questions. We do agree with counsel for the appellant, however, that as a matter of practice, the trial judge should record the ages of the assessors to remove speculation on age. We further reaffirm the decision, of the Court in the case Tongei Naata, cited supra, that the omission to give the appellant an opportunity to object to the assessors would not always be fatal. We are satisfied that such omission did not cause injustice to the appellant because the record shows that the assessors fully participated in the trial and they asked relevant questions which did not suggest ill will, grudges or prejudice to the appellant. Ground 3 of the appeal, which .counsel for the appellant, argued in the alternative, is not complicated. Upon finding P.W. 1 a credible witness, the trial judge observed: Besides that even the accused person, the court record shows that on the 19/6/2002 when he was asked to plead before Mr. Mtotela, PRM Extended Jurisdiction accused stated: "ni kweli niliua kwa bahati mbaya". [meaning, "It is true I killed by bad luck".] Again on 26/3/1999 before Nchalla, J. accused pleaded "I killed by bad luck". 11 Like the trial judge, we are satisfied that the above appellant's own admission of the killing on different occasions during plea taking, fully corroborated P.W. l's assertion that· the appellant killed the -~------ deceased. The circumstancesofthe--Killingantt--the-·evi<:lenGe-or-1 __ record show that the appellant murdered the deceased in cold blood. In that situation, we find no merit in the appeal. We accordingly dismiss the appeal and uphold the conviction and sentence imposed on the appellant by the High Court. DATED at MWANZA this 2ih day of February, 2006. E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL · I certify that this is a true copy of the original.