20160810 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA (CORAM: KIMARO. J.A.. KA13AGE. J.A. And LILA. J.A.^ CRIMINAL APPEAL NO. 158 OF 2016 1. GODFREY GABINUS NDIMBA “"I 2. YUSTO ELIAS@ MNGEMA ............................. APPELLANTS 3. EXAVERY ANTHONY @ MGAMBO VERSUS THE REPUBLIC............................................................... RESPONDENTS (Appeal from the decision of the High Court of Tanzania AtMtwara) (Twaib, J.) dated the 19th day of October, 2014 in Criminal Session Case No. 9 of 2014 JUDGMENT OF THE COURT 29th July, & 14th September, 2016. KAI3AGE. J.A.: The three (3) appellants herein were tried by the High Court sitting at Mtwara upon the information for murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2002. The information as laid at the appellants' door alleges that, on 9th September, 2012 at Chimbendenga Village, within i NachingweaDistrict in Lindi Region, the trio murdered one ZainabuNasoro @ Chikawe. Following a full trial, the said trial High Court which sat with three (3) assessors convicted the appellants as charged and, consequently, sentenced them to death. Dissatisfied,the appellants instituted the present appeal. At the hearing, the appellants adopted and sought to rely on the following pointsof grievance comprised in the supplementary memorandum of appeal filed on their behalf by Mr. Moses Mkapa, learned advocate; (i) That, the Honourable trial court erred in law and facts by convicting the appellants relying on Exh. PI without considering that such exhibit was not corroborated. (ii) That, the Honourable trial court erred in law and facts by failure to take intoconsideration that the prosecution has failed to eliminate other factors which might have caused the death o f the deceased. (iii) That, the Honourable trial Court erred in law and facts by convicting the appellants without considering the fact that the death o f the deceased was based on mob justice. Before us, the appellants were represented by Mr. Moses Mkapa, learned advocate. The respondent Republic had the services of Ms. NunuMangu assisted by Mr. Abdulrahaman Mohamed, both learned State Attorneys. When the appeal was called on for hearing, we asked the learned counsel representing the parties herein to give their respective comments on the propriety or otherwise of the summing up to the assessors and on whether or not the assessors were allowed to cross-examine the witnesses and what effect would be, in law, if the answers were to be in the affirmative. Addressing the issue we raised, both counsel hastened to make focused concurrent submissions that the record of proceedings of the trial 3 High Court exhibit the assessors having been allowed to cross-examine witnesses in contravention of their statutory mandate stipulated under section 265 of the CPA read together with section 177 of the Evidence Act, Cap 6 R.E. 2002 (the Evidence Act). In this regard, they cited to us our recent decision in KHALIFA AJIBU MUSEVEN Vs. R, Criminal Appeal No. 162 of 2016 (unreported) to contend that by allowing assessors to cross- examine witnesses instead of putting questions to them, the trial High Court thereby occasioned an incurable procedural irregularity which vitiated the appellants' trial. Indeed, both counsel took a common position to further contend thatthe summing up to the assessors on the alibi, a vital point of law, was not only unsatisfactory butalso inadequate and that on this account, the appellants' trial was similarly vitiated and rendered a nullity. Upon the aforesaid procedural irregularities, we were accordingly invited to nullify the trial High Court's proceedings and proceed to order a retrial. On our part, we wish to say, at the outset, that we are at one with the learned counsel's brief, but focused submissions on the issues we raised. Our careful perusal of the record pertaining to the trial High Court's proceedings has revealed that at pages 15-16, 19-21, 22-23 and at pages 31-32 the assessors were allowed to cross-examine witnesses both for the prosecution and the defence sides. Our findings are also confirmed by the trial court's judgment appearing at page 72 of the record, where the learned trial judge had this to say, among other things:- "When he was cross-examined by Mr. Mohamed Nassoro, one o f the assessorsPW1 said that before Zainabu's death, there was no reports linking her with Joseph Farahani's death..." [Emphasis is our]. Again, in his judgment at page 74 of the record, the learned trial judge stated the following:- "... When being cross-examined by one o f the assessors, PW3 told the court that Rosalia's houses were burnt at around 8.00 p.m. the night before Zainabu's death..." [Emphasis is ours]. From the immediate foregoing extracts, we have no doubt in our minds that in this case cross-examination by assessors offended section 177 of the Evidence Act which provides:- "In cases tried with assessors, the assessors may put any questions to the witness, through or by leave o f the judge, which the judge himself might put and which he considers proper." [Emphasis is ours]. It cannot also be gainsaid that section 265 of the CPA directs that all criminal trials before the High Court be conducted with the aid of assessors, the number of which is two or more as the court thinks fit. But section 177 of the Evidence Act prescribes precisely that in the course of trial, the assessors may put questions to the witnesses. They are not statutorily mandated to cross-examine or to re-examine witnesses. On this, section 290 of the CPA is instructive and it provides for who may be cross-examined and by whom. It reads:- " The witnesses called for the prosecution shall be subject to cross-examination by the accused 6 person or his advocate and to re-examination by the advocate for the prosecution." [Emphasis is ours]. Furthermore, section 290 of the CPA is amplified by section 146 of the Evidence Act whose relevant portions reads:- "146 (1) examination o f the witness by the party who called him shall be called his examination in­ chief. (2) The examination o f witness by the adverse party shall be called his cross cross- examination. (3) The examination ofa witness, subsequent to the cross-examination by the party who called him; shall be called his re-examination." [Emphasis is supplied]. In this case, we agree with both counsel that instead of the assessors putting question to the witness in terms of section 177 of the Evidence Act, they are recorded to have performed the role of the adversaries when they cross-examined the prosecution and the defence witnesses. Dealing with an identical infraction, this Court, in MATHAYO MW ALIMU AND ANOTHER Vs R; Criminal Appeal No. 174 of 2008 (unreported), had an occasion to make the following pertinent observation:- "...the function o f cross-examination is to the exclusive domain o f an adverse party to a proceeding." [Emphasis is ours]. Individuals selected to serve as court assessors are not and should not act as adversaries who can perform functions and duties contemplated under section 290 of the CPA read together with section 146(2) of the Evidence Act. In this case, we have found it hard to ascertain, on the basis of the trial High Court's proceedings, that the assessors discharged their statutory mandate with any degree of unquestionable impartiality or neutrality. We are saying so because the assessors were allowed to cross- examine witnesses. The rationale for not allowing assessors to cross- examine, was thus lucidly statedin MATHAYO MWALIMU'scase:- "The purpose o f cross-examination is essentially to contradict. By the nature o f their function, assessors in a Criminal trial are not there to contradict. Assessors should not therefore assume the function o f contradicting a witness in the case... they are there to aid the court in a fair dispensation o fjustice... " Moreover, in KULWA MAKOMELO AND TWO OTHERS Vs R, Criminal Appeal No. 15 of 2014 (unreported),the Court pronounced itself on the dangers of allowing assessors to cross-examine witnesses. We said:- "...by allowing assessors to cross-examine witnesses, the Court allowed itself to be identified with the interests o f the adverse party and, therefore, ceased to be impartial. By being impartial, the Court breached the principle o f fair trial now entrenched in the Constitution. With respect, this breach is incurable under section 388 o f the Criminal Procedure Act." As correctly pointed out by the learned counsel, cross-examination by assessors was not the only infraction which undermined the appellants' trial, but the inadequate summing to them, on the defence of alibi, also vitiated the trial. This is evident at page 71 of the record where the learned trial judge in his judgement belatedly stated the following, with commendable frankness:- "...the court has decided to give full consideration to the defence o f alibi in order to afford all the accused persons all the legal armoury available to them in the defence. That would rectify whatever prejudice that might have been occasioned to the 1st accused due to my omission to mention this legal position to the assessors in the summing up." [Emphasis is ours]. The law is now settled that failure by the trial High Court toproperly direct the assessors on vital points of law and their attendant legal import 10 is fatal, commenting on the implications for non- direction or misdirection on vital points of law in the course of summing up to the assessors, this Court, in SAID MSHANGAMA @ SENGA V's R, Criminal I Appeal No. 8 of 2014 (unreported), had this to say:- "... As provided under the law, a trial o f murder before the High Court must be with the aid o f assessors. One o f the basic procedures is that the trial judge must adequately sum up to the said assessors before recording their opinions. Where there is inadequate summing up, non­ direction or misdirection on such a vital point o f taw to assessors, it is deemed to be a trial without the aid o f assessors and renders the trial a nullity." [Emphasis is ours]. We have herein above briefly demonstrated that the assessors in this case were not only allowed to cross-examine witnesses, but the learned trial judge did not also sum up adequately to them on a vital point of law. 11 A combination or each of these infractions standing by itself constitute a fundamental procedural irregularity, incapable of being cured under the provisions of section 388 of the CPA. On account of these glaring irregularities, we hold that the appellants' trial was a nullity. In the exercise of our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, we nullify the proceedings and the judgement of the trial High Court. The conviction entered and the sentence passed against the appellants are, respectively, quashed and set aside. We order a retrial before another judge with a new set of assessors. DATED at MTWARA thislOthday of August, 2016. N.P. KIMARO JUSTICE OF APPEAL S.S. KALJAGE JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL Icertify that this is a true copy of the original H.S. MUSHI DEPUTY REGISTRAR 12