20130701 TZCA Arusha2

·:;: i~ . IN THE COURT OF APPEAL OF.TANZANIA . :• .• iJ • I",~;.: ~ AT ARUSHA (CORAM: OTHMAN, C.J.,ORIYO,J.A., And KAIJAGE,J.A.) CRIMINAL APPEAL NO. 279 OF 2010 RASHID I ALLy ■ I ■■■■■■■■■■■■ •• ■ I ■■■■■ •• ■ •• I ••• ■ I I I •• ■■ I ■ 111 ■ 1111111 ■ ••·········APPELLANT VERSUS THE REPUBLIC ..•......••..••........•....•..................•....... RESPONDENT (Appeal From the Judgment of the High Court of Tanzania at Arusha) (Mmilla, J. ) Dated the 9 th day of July, 2011 in Criminal Session No. 12 of 2005 JUDGMENT OFTHECOURT 2ih June, & 1st July, 2013 ORIYO, J.A: - The High Court, sitting_ ~-t Arusha, found Ra_shid Ally, the appellant, guilty of the murder of one John s/o Emanuel, contrary to section 196 of the Penal Code and sentenced him to suffer death by hanging. According to the prosecution evidence at the trial, the incident took place on 21/3/2003 at Shaurimoyo Village, Babati District. It was alleged that (prior to the fateful date) the deceased had assaulted the appellant sometime in October, 2002. They were reconciled by the village authorities and the deceased agreed to make monetary compensation to the appellant for the injuries he had inflicted upon him. Apparently, the deceased did not live up to his promise to pay compensation to the appellant. The appellant was not happy and on 21/3/2003 he visited the deceased at his residence, slashed him with a panga and surrendered himself to a Police Station at Magugu. Meanwhile, the deceased died at the scene due the injuries, shock and external haemorrhage, according to the post-mortem report; Exhibit "PI". Initially, the appellant admitted responsibility for the death of John Emmanuel in revenge, on account of the unpaid compensation. Subsequently he asserted that he had taken some alcohol which affected his mind before the incident. According to the appellant's account, while still affected by alcohol, he happened to be in the deceased' neighbourhood, where he allegedly met the deceased. The latter threatened to cut him with a panga. In self defence, the appellant 2 overpowered the deceased, grabbed the panga from him and slashed him twice, on the back and neck. He surrendered himself to the police. At the police station, the appellant was arrested and put behind bars. His cautioned statement was recorded by PW1, Selemani Della, a retired policemen, who at the time of the incident, was at Magugu Police Station. In the cautioned statement, the accused confessed to the killing of the deceased on account revenge. The appellant was aggrieved by the conviction and sentence imposed on him by the High Court. He appealed to this Court. In this appeal the appellant was represented by Mr Joseph 5. Sikawa, learned counsel while the respondent Republic was represented by Ms Stella Majaliwa, learned State Attorney. Ms. Majaliwa did not support the appeal. In the Memorandum of Appeal lodged by Mr. Sikawa, learned advocate, the appellant preferred the following grounds of appeal:- 1) The trial Judge did not consider provocation that led to murder. 2) The trial Judge did not consider the evidence of the appellant on grounds of intoxication. 3) The trial judge did not consider the evidence of insanity as advanced by the appellant. 3 In addition to the Memorandum of Appeal, the learned counsel for · the appellant had lodged a written statement of his arguments in support of the appeal, in terms of Rule 74(1) of the Court of Appeal Rules, 2009, (the Rules). The written arguments were complemented by Mr. Sikawa's oral arguments before us. Before giving Ms Majaliwa, learned State Attorney, an opportunity to respond, we thought it prudent at this juncture to share with the parties some observation we had made from the record. We noted that the learned trial judge did not sum up the case to the assessors before giving their opinions as required by law. Both parties agreed with us that the trial High Court Judge was required to summarise the evidence for the prosecution and for the defence to the assessors before requiring them to give their opinions as ) stipulated under section 298(1) of the Criminal Procedure Act, Cap 20 R.E 2002 (the Act). As to the consequences of the omission, Mr. Sikawa learned counsel was quick to respond that since the evidence was not summed up to the assessors, their opinions should be expunged from the record and the proceedings declared a nullity. 4 Ms. Majaliwa, learned State Attorney, on her part, submitted that there is sufficient evidence on record to convict, save for the violation of section 298(1) of the Act. She stated that the omission is not curable, it is fatal. In the circumstances, she prayed for a retrial. The learned counsel for the appellant vigorously contested the respondent's prayer for a retrial. Mr. Sikawa contended that an order for a retrial will be prejudicial to his client, if the Court is inclined to so order. It is trite law that all criminal trials before the High Court have to be conducted with the aid of assessors. Section 265 of the Act states:- ''265. All trials before the High Court shall be with the aid of assessors the number of whom shall be two or more as the court thinks fit 'fEmphasis ours). In view of the mandatory nature of section 265, the High Court had no discretion on whether to conduct a trial with or without the assistance of assessors. As for the role played by assessors in criminal trials before the High Court, this Court had occasion to discuss the same subject matter in the case of Augustina LudaruVs. Republic, Criminal Appeal No. 70 of 2010 (unreported). The Court stated: 5 •~.. The role of assessors is to assist the court to arrive at a Just decision. " As to how the role is attained, the Court answered as follows:- "The answer is twofold One, the court to avail the assessors with adequate opportunity to put questions to witnesses. Through questions, the assessors will help the court to know the truth. Two, ...... is that when the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence and shall then require each of the assessors to state his/her opinion orally. " The law on the summing up to the assessors is· as stipulated in section 298 (1) of the Act, which provides:- ''298-(1) when the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence and shall then require each of the assessors to state his opinion orally as to the case generally and as to any specific question of fact addressed to him by the judge, and record the opinion. 'femphasis ours). Ordinarily, the word "may" means discretionary, optional, etc. However, in the case of Hatibu Gandhi and Others Vs. Republic, [1996] TLR 12, the Court stated as follows:- 6 " The word ''may" in section 283(1) of the Criminal Procedure Code(now section 298 (1) of the Criminal Produce Act 1985) is unambiguous and crystal clear; and thus the trial Judge's summing up of the case to his assessors is not mandatory, but prudent as a matter of practice." Simply put, what the Court said in Hatibu Gandhi's case is that the practice of summing up to assessors at the end of the case, has acquired the status of law as mandatory. It has been observed that both parties in the appeal are agreed that the omission by the trial court to sum up the evidence and the relevant laws to the assessors at the end of the case before receiving their opinions, is fatal and renders the trial a nullity. On our part, we agree with the learned counsel. Therefore, the proceedings are quashed and sentence set aside. In an effort to balance the interests of both sides, we have taken account of the time that the appellant has spent behind bars since March 2003 and the premature loss of human life. In our view, we think that an order for a retrial will be in the interests of justice. 7 'i We order that a retrial be conducted as expeditiously as possible ,, before another judge and a different set of assessors. DATED at ARUSHA this 1st day of July, 2013. M.C.OTHMAN CHIEF JUSTICE K. K. ORIYO JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. MALEWO. M.A DEPUTY REGISTRAR COURT OF APPEAL 8