omary mwichande others vs republic 2017 tzca 334 13 october 2017

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA ( CORAM: MUSSA, J.A., MZIRAY, J.A., And MWANGESI, J.A.l i CRIMINAL APPEAL NO. 71 OF 2016 1. MT. 101296 OMARY MWICHANDE 2. MT. 1012271 RAJABU MUSSA KHAMI _ ................... APPELLANTS 3. MT. 101263 MUSSA VUAI HASSAN 4. MT. 99506 RICHARD COASTER FRSCH VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (MambLi) dated the 2nd day of March, 2016 in Criminal Sessions Case No. 68 of 2014 JUDGMENT OF THE COURT 27th September & 13th October, 2017 MUSSA, J.A.: In the High Court of Tanzania, at Mbeya, the appellants were arraigned for murder, contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. The particulars on the information alleged that on the 18th November 2012, at Mbalizi DDC area, within the District of i Mbeya, the appellants murdered a certain Petro Sanga. We shall henceforth refer to him as "the deceased". They all denied the accusation and, accordingly, the matter was taken to a full enquiry. At the end of the trial which was comprised of nine witnesses and eight documentary exhibits featured by the » prosecution as against the defence case which involved seven witnesses and three documentary exhibits; the appellants were found guilty, convicted and handed down the mandatory death sentence. They are presently aggrieved upon a variety of points of grievance but, before we reflect on the issues of contention, it is necessary to unveil the factual setting, albeit, briefly. The fateful incident was preceded by a separate occurrence which involved an attack on a military soldier by civilians at the referred Mbalizi - DDC area, on the 17th November, 2012. It was undisputed that the victim, namely, Godfrey Matete was an army soldier based at the Tanzania Peoples Defence Forces (TPDF) military battalion camp which was frequently referred as "JWTZ 44KJ, Mbalizi". Evidence was to the I effect that, in the aftermath of the attack, the victim was hospitalized but, it was said that some of his colleagues at the camp were unamused and were bent on a revenge. As to who among the soldiers at the 44 KJ were bent on a revenge, was a detail wholly derived from the testimony of Saidi Malima (PW4) who happened to be a soldier at the camp. Earlier, around 7.00 p.m. or so, on the fateful day, PW4 was at Power Pub, Mbalizi area. He had gone there to visit his girlfriend, namely, Rehema, who was not called as a witness. The witness stayed at the pub for an hour or so, whereupon he departed heading towards the camp. Just as he departed, PW4 saw a group of about thirty persons who were armed with clubs and military trouser's belts. The witness did not elaborate on the distance from the pub to where he met this group but, he allegedly immediately recognized the second, third and fourth appellants as being amongst the group, as it were, with the aid of an unexplained source of light. Apprehending that the group was up to no good, PW4 exclaimed to them the word "micmic"so as to clearly identify himself as a fellow soldier. According to him, the prefix, m icm ic is a military slang for a greeting. 3 From the testimonies of Mani Andulile (PW1) and Bosco Choga (PW5) it quite evident that around 8.30 or so, a large group of persons physically descended upon the customers who were at the Power Pub and that, in the ensuing pandemonium, several persons were injured just as several chairs, tables and other properties were broken. Nonetheless, as regards the deceased, it was not clearly spelt out as to when and how he got involved in the chaos. All what was said of him came from the testimony of Assistant Inspector Deus Wambura (PW7) who said: - '"At the scene o f the event; we found civilians running away. We also found one person inflicted with a sharp object on the ground near Vavene grocery near DDC. I took the casuality with our car to IFISI referral hospital for treatm ent" If the testimony of PW7 is anything to go by, the deceased was attacked at Vavene grocery and, while PW7 was at the hospital, he received a call that some people had invaded Power Pub and were terrorizing customers. Thus, upon his instructions, Inspector Grayson Shila (PW8) visited both Vavene Grocery and Power Pub. PW8 noted that there were blood stains at the door-step of Vavene grocery, whereas at the latter scene, a variety of properties such as chairs, tables and bottles were found broken. As regards the deceased who was hospitalized, the evidence of PW7 was further to the effect that he was informed of his demise in the morning hours of the 19th November, 2012. Upon a post-mortem examination (exhibit PI) the primary cause of his death was attributed to severe bleeding secondary to a cut wound which was inflicted on the left side of his neck. In the aftermath of the deceased's demise, the appellants were arrested and implicated for the homicide. As it were, during the trial, they all denied the accusation and protested their innocence in their respective testimonies which were mainly in the nature of alibi's. At the conclusion of the prosecution and defence cases, the presiding Judge (Mambi, J.) summed up the case to the assessors. More 5 particularly, in certain instances, the learned Judge impressed on them thus: - "The said deceased m et his brutal death after being stabbed on 18/11/2012 caused by the accused persons to the Charge Sheet and other evidence as testified by some witness''' (See page 141). "As you m ay recall from the evidence, the deceased was stabbed with sharp object by one o f the accused"{See page 142). "On the night o f the death o f the deceased the accused persons had earlier invaded two bars including Power Pub Bar where the deceased i m et his death "(See page 143). Having been addressed, the assessors who sat with Judge seemingly returned an unanimous verdict of "guilty" as against all appellants. We have said "seemingly" because the third assessor, in particular, expressed some doubts despite her opinion that all appellants were responsible for the death of the deceased. In the upshot, the learned Judge was impressed by the case for the prosecution which, he said, had established its case to the hilt and, accordingly, the appellants were convicted and handed down the mandatory death sentence. The appellants are aggrieved upon a lengthy joint memorandum of appeal which is comprised of six points of grievance. Of particular interest to us is ground No. 5 which challenges the trial Judge thus: "That, the trial judge erred in law and in fact by directing and influencing his assessors instead o f summing up to them; and im ported extraneous m atters which were not canvassed in evidence during the tria l." At the hearing, before us, the appellants were represented by three learned Advocates, namely, Mr. Hamid Mbwezeleni, Mr. Pacience Maumba and Dr. Tasco Luambano. On the adversary side, the respondent.Republic had the services of Messrs Ofmedy Mtenga and Hebei Kihaka, both learned State Attorneys. We impressed upon counsel from either side to address us on Ground No. 5 of the joint memorandum which, we think, will sufficiently dispose of this appeal. In this regard, Mr. Maumba, on behalf of the consortium of the appellant's advocates, fully adopted the written submissions which, he said, sufficiently addresses the issue of contention. The learned counsel for the appellants criticized the presiding Judge for influencing the i assessors in his summing up. Mr. Maumba further submitted that, even as the judge did so, he misdirected the assessors to take into account extraneous matters which were not canvassed by the evidence on record. In the circumstances, the learned counsel for the appellants urged us to nullify the proceeding but cautioned us not to order a retrial as the evidence in support of the charge fell short. I To this submission, Mr. Mtenga went along and similarly cautioned that a retrial will not serve any useful purpose as the evidence of identification of the appellants by PW4 was unreliable. Having heard the submissions of counsel from either side on this issue, we fully subscribe to the complaint that the learned Judge did, indeed, impress his own views on the evidence and thereby influenced the assessors in his summing up. By, for instance, impressing on the assessors that the deceased met his demise after he was "stabbed by the accused, persons", the learned judge disclosed his own theory which was, after all, not canvassed by the evidence. Similarly, his direction that the appellants "invaded two bars including power pub Bar where the deceased met his death" was a detail of his own invention unworthy of being put to the assessors. It should be recalled that, on the contrary, the evidence was to the effect that the deceased's attack happened at Vavene grocery and, what is more, there was not a grain of evidence to the effect that the appellants also invaded that grocery. In the case of ALLY JUMA MAWEPA v REPUBLIC 1993 TLR 231 (CA) the Court of Appeal held thus: (i) When summing up to the assessors the tria l Judge should, as far as possible desist from disclosing his own views, or making rem arks or comments which m ight influence the assessors one way o r another in making up their own m inds about the issue or issues being le ft with them for consideration; (ii) The assessors should be made to give their opinions independently, based on their own perception and understanding of the case after receiving the opinions o f the assessors and in the course o f considering his judgm ent in the case; In the matter at hand, we cannot state with certainty that the appellants were not prejudiced, much as correctly argued by Mr. Maumba, the assessors were led into a consideration of extraneous matters. Thus, we are satisfied that on account of the misdirections the i entire trial proceedings were vitiated and, accordingly, we nullify the proceedings upon the invocation of section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws. Mr. Mtenga has advised us that a retrial will save no useful purpose and, in agreement, we should remark that there was not a scintilla of evidence to connect the appellants, or any of them, with the Vavene i grocery incident where the deceased was attacked and, thus, the identity of the culprits was unresolved. We, accordingly, refrain from 10 ordering a retrial and, instead, we order the forthwith release of the appellants from prison custody, unless if they are detained there for some other cause. DATED at MBEYA this 13th day of October, 2017. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. JE. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 11