20151012 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA {CORAM: KIMARO, l. A., MASSATI, l. A. And MZIRAY, J. A.) CRIMINAL APPEAL NO. 234 OF 2015 !: :!~::~~~~~YA}............................................................... APPELLANTS VERSUS THE REPUBLIC ············••s••······················································· RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Tabora) {Rumanyika, l.) dated the 28th day of March, 2014 in Criminal Session Case No. 81 of 2011 JUDGMENT OF THE COURT sth & 13th October, 2015 MZIRAY. J.A.: The two appellants Ntobangi Kelya and Ngisa Mahila appeared before the High Court of .Tanzania sitting at Maswa to answer information of murder c/s 196 of the Penal Code, Cap 16 R.E. 2002. It was alleged that the two appellants together .with one Mboje Maremo on 8th day of September, 2010, at Mwanhuzi Village, Bariadi District, did murder Magembe Ntemi @ Lubeti. They were each found guilty, convicted, and sentenced to death by hanging. The third accused Mjoje Maremo was 1 discharged after the prosecution had entered a Nolle prosequi under section 91 (1) of the Criminal Procedure Act, Cap 20. Aggrieved, they have preferred this appeal. The case for the prosecution as established at the trial was that the deceased, Magembe Ntemi and the appellants were friends. On 8/12/2010, Ngisa Mahila, the 2nd appellant, asked the deceased to assist him to make some bricks. The deceased accepted and the two went to the house of the 2nd appellant to do the job. On that day the deceased did not come back home. On the next morning the deceased was found dead and his head was chopped off. The same was missing. With that, an alarm was raised and the villagers responded. The 2nd appellant was arrested in connection with the murder. When interrogated, the 2nd appellant admitted before the crowd which had gathered to have murdered the deceased in the company of the 1st appellant. On 12/9/2010, the 1st appellant was arrested. When interrogated he also confessed killing the deceased and led the villagers to the place where the deceased's head was dumped. The missing head was found immersed in water on the river bank wrapped with polythene bag 2 together with the deceased's clothes. A post-mortem examination was conducted and it revealed that the cause of death was due to neurological and hemorrhagic shocks. At the police station, Assistant/inspector Gaudent (PWS) recorded the statements of the 1st and 2nd appellants who confessed to have killed the deceased. At the trial, the appellants retracted the cautioned statements and denied any involvement in the killing of the deceased. They claimed that the confession was not freely made because the appellants were subjected to torture. After a trial within a trial was conducted the learned trial judge found that the statements were freely made. Consequently, the cautioned statements were admitted in court and collectively marked as Exh. P2. On the basis of that evidence, the trial court was satisfied that the case against the appellants was proved beyond reasonable doubt. The appellants were convicted and sentenced to death. They have now come to this Court to challenge their conviction. In this appeal the 1st appellant was represented by Mr. Kayaga, learned counsel and the 2nd appellant enjoyed the services of Mr. Kassim, whereas 3 the respondent/Republic was represented by Mr. Ildephonce Mukandara, learned State Attorney. The gist of the complaint in the memorandum of appeal is that there was no fair trial. Two reasons are given. First, the cautioned statements by the appellants admitted in court were not read over in court for the court assessors to know their contents. In support of that assertion, Mr. Kayaga strenuously argued that the trial court having overruled the defence objection as to the admissibility of the appellants' cautioned statements, Exh. P2, and after the assessors have resumed to court, it could have ordered the statements to be read over to the appellants so that the assessors could know the contents thereof. The learned counsel pointed out that since the trial court did not afford opportunity to the appellants and assessors to hear what the statements were all about, then he was of the opinion that the omission constituted a fundamental error. Secondly, the learned counsel contended that the trial judge was duty bound to guide assessors _ in the summing up on the law relating to the defence of provocation ana address them with an open mind for them to give their opinion freely; but quite unfortunate, the trial judge conclusively 4 found that there was no material evidence suggesting that the 2nd appellant was provoked. On his part, Mr. Kassim counsel for the 2nd appellant subscribed to the submission of Mr. Kayaga and prayed for the entire proceedings be declared a nullity. However, on the issue of provocation, he added that the trial judge acted unproducerally by concluding that there was nothing material to suggest provocation in the case, as in so doing, he was trying to shut the mouths of assessors from giving out their opinion on the matter. The counsel stressed that the trial judge had a duty to guide them on the law relating to provocation and nothing more. On his part, Mr. Mukandara, learned State Attorney commenced his submission by resisting the appeal but, after a brief dialogue, he conceded that the conviction and sentence cannot be sustained. This, he said, is on account of the reality that the cautioned statements were improperly adduced into evidence because the witness who produced them did not read them in court as required by the law and, in addition, he argued that the trial judge did not properly guide the court assessors on the law relating to provocation and caution statements. 5 On our part, we entirely subscribe to the argument by the learned counsels who appeared for the parties. To begin with, it was wrong for the trial court to receive the caution statement as evidence without ordering the same be read over in court. To support our position we refer to the case of Sumni Amma Awenda vs R., Criminal Appeal No. 393 of 2013 (CAT) at Arusha (unreported), in which it was stated:- •~ .. The cautioned and extra Judicial statements had a lot of details and immensely influence the decision of the trial court. As such, before relying on them there was need for the trial court to see to it that they were properly received'~ The court went on further stating:- "... to have not read those statements in court deprived the parties, and the assessors in particular, the opportunity of appreciating the evidence tendered in court. Given such a situation, it is obvious that this omission too constituted a serious 6 error amounting to miscarriage of justice and constituted a mis-trial'~ Yet, this court in another case of Tibashekerwa Gaspary and another vs R., Criminal Appeal No. 122 of 2012 quoting with approval the decision in Director of Public Prosecution vs Joseph Choma, Criminal Appeal No. 75 of 1990 (CAT unreported), stated this as regards a trial within a trial and the proper procedure to be followed:- ''if the statement is held to be admissible, the prosecution evidence regarding it is given afresh, and cross-examination may again be done, for the assessors to know the circumstances in which the statement was taken so as to decide the weight to be attached to it'~ With much respect, the trial court in this case, did not observe this procedure. The cautioned statements (Exh. P2) was not read over in court for the assessors to hear the details of its content, and ascertain the same. Given the shortcomings in procedure, it was obvious that failure to read the cautioned statements in court, the assessors were deprived the 7 opportunity to know the circumstances in which the statements were taken for them to properly weigh the facts before them. Therefore, that in our considered view occasioned miscarriage of justice and constituted a mis- trial. Next for consideration is the complaint that the trial judge did not direct and guide properly court assessors on the law relating to cautioned statement and the conclusion made by the trial court on the issue of provocation. l~~~~~se, gi"'_~~~th~-fact.-that the~~s~-~~s-were-not-directeu-on lh~=~~~!is>~-~9~-~a_!~~e~=~j~~~d-j_!l--=:_~yi_a_ence,__ which-fact-we_suti~~Ti_l:>~1 a[l~-~i n~~~~~__gf~_JJ o_afile--to_ preaict _tbe . . natu re ofthe--verdict the_asse_~SQ!S wp~j}~~ivenrwe-are-of-the view- that-the-aJ)pellants-were-0enied-=-toeir legal right of trial with the aid of assessors as instructed by section 265 of the CPA which provides that:- "All trials before the High Court shall be with the J aid of assessors the numbers of whom shall be two or more as the Court thinks fit"(emphasis added). 8 • This Court in the case of R vs GROSPERY NTAGALINDA @ KORO, Criminal Appeal No. 73 of 2014 and that of CHARLES LYATII @ SADALA vs R., Criminal Appeal No. 290 of 2011, ~tatea-thcit-failure.:to aaaress-ana7 "ciirecr-assessors-on-thevital-·peiflt-0f:.lawsen_aers the-p_!9~~di_ng~-a-rn:1_l~!~i · The latter case however, quoting the decision in TULUBUZYA BITURO vs R. (1982) TLR 264. in which ratio decidendi in BHARAT vs THE QUEEN [1959] AC 533 was approved, stated:~ "Since we accept the principle in Bharat's case as being sensible and correct it must follow that in a criminal trial in the High Court where assessors are misdirected on a vital point, such trial cannot be construed to be a trial with the aid of assessors. The position would be the same where there is non- direction to assessors on a vital point" In-tl'lis~case-therefo[e,__faHwr_e_j)J __tne_Je~rned-trial--juage-to-ciireet-a_!ld -----·--- --- ~~---- addr~~~s_Joe_ as_sessors__on~ttte__ law:Jela_tJo:g--to-ca ution-statement-has-the I,______ ---··-----------~----- ~~-- 9 • Equally, the conclusion made by the trial judge on the issue of provocation had the effect of shutting their mouths of giving out their opinions, thus, denying the appellants a fair trial. That said, and for the reasons we have endevoured to state, we accordingly find ourself constrained to nullify the appellants' trial, conviction and sentence, which we hereby do, in exercise of our revisional power under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002. Having nullified the appellants' trial, we wish to reiterate what the then East African Court of Appeal lucidly stated in FATEHALI MANJI vs R. (1966] EA 341. ''In general a retrial will be ordered only when the original trial was illegal or defective. It will be not ordered where the conviction is set aside because of insufficiency of evidence or for purpose of enabling the prosecution to fill up the gaps in its evidence at the first trial. Even where· a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial shall be ordered; \ each case must depend on its own facts and circumstances and an order of retrial should only be made where the interests ofJustice require'~ In the present case, given the nature of the case, the circumstances of the case and the fact that the appellants were convicted last year, public interest enjoins us to order a retrial before another judge of competent_ jurisdiction with a new set of assessors. We so order. DATED at TABORA this 12th day of October, 2015. N. P. KIMARO JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL R. E. MZIRAY JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A.MARUMA DEPUTY REGISTRAR COURT OF APPEAL 11 r