bundala mayala vs republic 2015 tzca 112 1 december 2015

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LUANDA, J.A.. MASSATI. J.A. And MUGASHA, 3.A.) CRIMINAL APPEAL NO. 148 OF 2015 BUNDALA MAYALA............................................................................ APPELLANT VERSUS THE REPUBLIC...............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Sonqoro, 3.) dated the 30th day of October, 2014 in Criminal Session Case No. 117 of 2012 JUDGMENT OF THE COURT 1st & 2nd December, 2015 MASSATI, J.A.: The appellant was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code by the High Court, of Tanzania sitting at Shinyanga. It was alleged that on the 26th July, 2011 around 20.00 hour, at Shambelendi - Solwe village within Shinyanga District and Region the appellant murdered one MONJI d/o SHINUKA. The prosecution case was that the deceased was the appellant's aunt; his father's sister. On the material day and time, the deceased and the appellant's father who were living together, were taking their dinner. The appellant then joined them. The appellant's father left to go out to smoke. Left alone, the appellant suddenly slashed the deceased on the head and cheek. The appellant's father yelled for help, but the appellant ran away. The people who had gathered to respond to the yells, began a manhunt and traced the appellant at Kakola village, at his uncle's place. The deceased died due to severe haemorrhage from multiple cut wounds. After his arrest, the appellant was charged with this offence. The prosecution fielded five witnesses, and the trial court received three documentary exhibits including the post mortem report, (Exhibit PI), the appellant's cautioned statement (Exhibit P2) and the statement of the appellant's father MAYALA SHINUKA (Exhibit P3). The witnesses included E. 3965 CPL. RESPICIOUS (PW1), LEONARD MASALU (PW2), JOHN IGOGO (PW3), LUKALA MASANJA (PW4) and MWANDU NKANDULWA (PW5). At the end of the prosecution case, the trial court made a ruling under section 293(2) of the Criminal Procedure Act (Cap. 20 R.E. 2002) (the CPA). According to the record, the ruling is 11 pages long, and contains an analysis and evaluation of the entire prosecution case. The ruling makes four findings of fact, and it concluded: "the testim ony o f PW 4 and PI/I/5 established that, a fte r killin g and adm ission o f the accused he kille d the deceased, the accused is the one who lead (sic) PW 5 into the house o f LUKALA MASANJA PW 4 a t n igh t and show (sic) a panga to PW 4 and PW 5 which he used to cu t the deceased to death; the court is sa tisfie d and decides that, the prosecution sides (sic) has established a prim a facie case against the accused person on the charge o f m urder which is facing. U nless and u n til the accused offers a defence, otherw ise he stands to be convicted with offence charged . " It is after this, that the trial court then went on to address the appellant in terms of section 293(2) (a) (b) and (3) of the CPA. After hearing the defence, the trial court convicted the appellant and sentenced him to death. Dissatisfied, the appellant has taken an appeal before us. Mr. Kamaliza Kayaga, learned counsel who appeared for the appellant at the hearing has presented three grounds of appeal namely: - "1. That the appellant was denied a fa ir tria l as the Honorable tria l judge in a ruling fo r a case to answ er m ade rem arks which am ounted to convicting the appellant before he gave h is defence. 2. That the appellant's cautioned statem ent (Exh. P2) was w rongly adm itted in evidence and w rongly relied upon by the Honourable tria l ju dge in convicting the Appellant. 3. That the statem ent o f MA YALA s/o SHINUKA was w rongly adm itted in evidence as Exh ib it P4 and w rongly re lie d upon by the Honourable tria l Judge in convicting the appellant." Of the three grounds, Mr. Kayaga argued only the first ground. After quoting the passage which we have quoted above, the learned counsel briefly submitted that it was wrong for the trial court to make findings of fact at that stage before hearing the defence case. The result is that the appellant did not get a fair trial, he argued citing the decisions of KABULA LUHENDE v R, Criminal Appeal No. 281 of 2014 (unreported) as authority. He therefore prayed that we nullify the trial and order a retrial before another judge and another set of assessors. The respondent/Republic, which was represented by Mr. Miraji Kajiru learned State Attorney, supported the appeal on that ground. He briefly submitted that, it was wrong for the trial judge to have made findings of fact from the prosecution evidence alone, before hearing the defence. He also agreed that the appellant did not get a fair trial, and to the suggestion that there be a retrial before a new judge and another set of assessors. There can be no dispute that before the appellant was called upon to give his defence, the trial court made findings of fact, as captured in the passage quoted above. We shall, however recapitulate the said findings here. According to the trial judge, the Court found that the evidence of PW1, PW2, PW3, PW4 and PW5 established that: "(1) th at M onji Shinuka (the deceased) is dead and died a violent death a fter suffering cut wounds, (2) going b y Exh ibit P4, the cautioned statem ent o f MAYALA SHINUKA, the father o f the accused, he saw h is son, BUNDALA MA YALA, picking a panga and started to cu t the deceased u n til she fe ll down. (3) the testim onies o f the w itnesses also established that separately th e y ................... and interrogated the accused and he adm itted that he cut the deceased by panga. . (4) th at the testim ony o f PW 4 and PW 5 established that after the killin g and adm ission o f the accused that he k ille d the deceased, the accused is the one who led PW 5into the house ofLUKALA MASANJA pW 4 a t n igh t and show ed a panga to PW 4 and PW 5. " With respect, such findings were expected to be found in a judgment, rather than in a ruling of a case to answer. This is because disputed findings of fact can only be legitimately established after a proper evaluation of both the prosecution and the defence cases. (See HUSSEIN IDD AND ANOTHER v R (1986) TLR 166). Since at that stage the trial court had only heard the prosecution case, it could not have established or made any findings of fact. This is, a rule of the thumb, which every presiding judge or magistrate ought to know. It has its roots in the rules of natural justice, which is the backbone of any fair trial. In KABULA LUHENDE v R, (supra) cited by both learned counsel, a similar situation arose. This Court held that the statement: "... / consider that the accused com m itted the offence o f which he stands charged." which the trial judge made at the end of the prosecution case was held to have been openly biased against the appellant and prejudicial to his intended defence. The Court went ahead and found this to be a violation of the principles of fair trial now enshrined in Article 13(6) (a) of the Constitution of the United Republic of Tanzania. The above decision was followed in the next decisions of this Court in JOSEPH LUSHIKA @ KUSAYA AND MAZIKU MPIGACHAI @ KIJIJI v R, Criminal Appeal No. 18 of 2012, NGASA KALULI @ SENGEREMA v R, Criminal Appeal No. 160 "B" of 2014 and NJILE MPEMBA v R, Criminal Appeal No. 419 "B" of 2013 (all unreported). Based on the above authorities we agree with both counsel in this appeal that, to the extent that the trial judge purported to make and establish findings of facts at the close of the prosecution case and without 7 hearing the defence case, the appellant did not get a fair trial. Consequently the trial was a nullity. We therefore allow this appeal, quash the proceedings and conviction, and set aside the sentence. We order that the appellant be retried as expeditiously as possible before a different judge and a different set of assessors. It is so ordered. DATED at TABORA this 1st day of December, 2015. B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL S. E. MUGASHA JUSTICE OF APPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL