20151016 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J. A., MASSATI, J. A. And MZIRAY, J. A.) CRIMINAL APPEAL NO. 296 OF 2014 EZEKIEL S/O BAKUNDA ·········-··· ....................... -.............................. APPELLANT VERSUS THE REPUBLIC················-············· ............................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Mruma, J.) dated the 11 th day of March, 2014 in Criminal Session Case No. 35 of 2009 RULING OF THE COURT 13 th & 16 th October, 2015 MASSATI, J.A.: The appellant was charged with and convicted of the offence of murder in the High Court sitting at Tabora. He was sentenced to death by hanging. He has now come to this Court to challenge both the conviction and sentence. The information laid at his door alleged that on the 15th September, 2007 at Kumsenga Village, in Kibondo District, he murdered one EGDE S/0 SINDIMO@ SALVATORY. The prosecution case was that, the deceased was ambushed in his house at night by the appellant and his friends who were from Burundi. He scrambled out and attempted to run away from their grips. His feet could 1 t,1 not carry him very far. He was soon caught by the two friends and slaughtered and separated his torso from his head. Then, the appellant's colleague, called Gabriel Ntachokulikilla went to Kumsenga village to look for a vendor of the deceased's head. One Mr. Teseko Shabani showed interest in purchasing the head. While George went back to inform his colleagues about the customer, Teseko, tipped the authorities, including the Village Executive Officer and officials of the Tanzania Peoples Defence Forces about the triphy. They laid and waited for the human parts sellers. Gabriel and his colleagues went to Kumsenga Village where they were to meet Teseko. Indeed they met Teseko, who took them to his second wife's house. Of the three culprits, one waited outside while two, including the appellant went into the house. While inside the house, Gabriel and the appellant were arrested by the TPDF soldiers and handed over to Mabamba police station while the one waiting outside ran away. Gabriel died before he was charged in court. In the course of investigation, the appellant took the police and showed them where they seized and murdered the deceased, remaining with the head, and leabing the body there. According to the post-mortem examination report the cause of death was due to hemorrhage after the neck was cut off. 2 After a full trial which consisted of 6 prosecution witnesses and the appellant's own defence, the appellant was convicted and as shown above he has now come to this Court, where he was represented by Mr. Mugaya Mtaki, learned advocate. Mr. Mtaki had initially raised and filed only one ground of appeal, that the prosecution case had not been proved beyond reasonable doubt. However at the hearing of the appeal, he abandoned that ground and with leave of the Court, argued one ground; which was that by allowing the assessors to cross-examine witnesses, the trial judge transgressed into the principles of fair trials. In his brief submission, the learned counsel pointed out that the record shows that the assessors were allowed to cross-examine witnesses, on pages 26, 35, 40, 43, 49, 54, 60 to 61 of the record. He went on to argue that since, assessors were part of the court, and since the court had no mandate to cross-examine witnesses in terms of section 146 (2) of the Evidence Act, and section 250 of the Criminal Procedure Act, (Cap 20 - R.E. 2002) this was highly irregular. He went on to cite our recent decision in this same session of KULWA MAKOMELO AND TWO OTHERS vs R., Criminal Appeal No. 15 of 2014 (unreported) and urged us also to revise and quash the proceedings under section 4 (2) of the Appellate Jurisdiction Act (Cap 141 R.E. 2002) and order a retrial of the appellant. 3 The respondent/Republic which was represented by Mr. Iddi Mgeni, learned State Attorney, agreed with Mr. Mtaki. The learned counsel also submitted that the cross-examination of witnesses was contrary to section 146 (2) of the Evidence Act, and as held in KULWA MAKOMELO's case the irregularity was incurable. So he also asked us to vitiate the proceedings and order a retrial. As there is no dispute that the record of appeal, on pages 26, 35, 40, 43, 49, 54, 60 and 61 indeed reflects that the assessors were allowed to cross-examine both the prosecution witnesses and the accused, we think the decision in this appeal centres on a narrow compass. Whether it was lawful • for the learned trial judge to have allowed the assessors to cross-examine witnesses and yet leave intact, the integrity of the trial process? We answered that question in our recent decision in this same session here in Tabora, in KULWA MAKOMELO AND TWO OTHERS vs R. (supra) witnesses also the same trial judge allowed assessors to cross-examine assessors. After reviewing all the literature on the subject we concluded:- ".. .it is clear that the law frowns upon the practice of allowing assessors to cross-examine witnesses in any trial'~ 4 And that this was because, although assessors may be allowed to put questions to witnesses under section 177 of the Evidence Act:- " it is not the duty of assessors to cross-examine or reexamine witnesses or the accused. The assessors duty is to aid the judge in accordance with section 265 ( of the Criminal Procedure Act) And more so, because:- "the purpose of cross-examination is ·essentially to contradict. By the nature of their function/ assessors in a criminal trial are not there to contradict. Assessors ... .are there to aid the court in a fair dispensation ofjustice'~ In MAKOMELO's case we further held that by cross-examining witnesses, the assessors as part of the court, thereby necessarily identified themselves with the interests of the adverse party, and demonstrated apparent bias, which was a breach of one of the rules of natural justice "the rule against bias" - which is the cornerstone of the principles of fair trial now entrenched in Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. 5 We thus agree with both learned counsel that this complaint has substance. In view of the above discrepancies, the whole trial is vitiated. We accordingly, exercise our revisional powers under section 4 (3) of the Appellate Jurisdiction Act, and quash all the proceedings and the conviction, and set aside the sentence. We however, order, that the appellant be retried with immediate dispatch by a different judge and a different set of assessors: Order accordingly. DATED at TABORA this 16th 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.ff}iA DEPUTY REGISTRAR COURT OF APPEAL 6