20181106 TZCA Dar es Salaam

N THE COURT OF APPEAL OF TANZANIA · ··AT DAR ES SALAAM "•i·l.' . . ""j., • A. • ,6,•,, .... ,. (CORAM:. MWARIJA, J.A., MWANGESI. J.A~ And KWARIKO, J.A.) ...... _ -~- CRJMINAL APPEAL NO .. 3.01 QF io11 __ ..... ___ . ·-·• .... VINOTH PRAVEEN ................................................................ APPELi..ANT VERSUS THE REPUBLIC .............•.................................................. RESPONDENT (Appeal from the decision of the High Co_urt of Tanzania at Dar es Salaam) (Twaib, J.) . I Dated the 20 th day of June, 2011 I i in HC. Criminal Session Case No. 83 of 2009 RULING OF THE COURT 5th Sept-ember & 9th November, 2018 MWARIJA, J.A.: I The appellant, Vinoth Praveen was charged in the High Court of I Tanzania at Dar es Salaam with the offence of murder contrary :to sect~on 196 of the Penal Code [Cap. 16 R.E. 2002] -(the Penal Code). It ·-·. -~-.,-··•--·:.was alleged that on or about ih~';-6th~-·day of February, 2009 at -Kipata ::.:·-~- <.-.,-,,,-- ··-· Street within Ilala district in Dar es Salam region, he murdered one J ·Abdulbasit Abdallah. I I .. , , . I •C '!" -·· '" . After a full trial, the · appellant was found guilty of the offence I charged. He was cons~quently sentenced to suffer death by h~ngirig in 1 accordance with the mandatory provisions of section 197 of the Penal - . ·Code read together with section 322 ( 1) of the Criminal Procedure Act ... . . - .._ -- . - . [Cap. 20 R.E., 2ooi] · (the CPA) .. Aggrieved by the conviction: 'and ,> ,.~ sentence, he has preferred this appeal. When the appeal was called on for hearing on 5/9/2018, the appellant was represented by Mr. Melchior Sanga, learned counsel while the respondent Republic was represented by Ms. Cecilia Mkonongo, ·,earned State Attorney. Before the appeal could proceed to hearing, we required the learned counsel for the parties to address us on the effect of the irregularity concerning · the manner in which the assessors gave their opinion. After the learned trial judge had made a summing up to them, he allowed them to retire for consultations amongst themselves. That is a permissible procedure under S. 298 (4) of the CPA. When the · pro'ceecHiigs resumed, one of them, Mr. Charles-Shija, was permitted to read over. the opinion which the assessors had jointly prepared. According to S. 298 (1) of the CPA however, each of the assessors who participated in the .trial is required to give his/her· own oplnion. The provision states as follows:- 2 "298- (1) When the case on both sides is closed, the judge may sum up the_ evidence for the prosecution and the defence and ~{Jal/ then r~qliire each of the assessors to state his opinion orally as to the case generally and as to any specific question of fact addressed to him by the judge, and record the opinion.'' [Emphasis added.] Submitting on the irregularity, Mr. Sanga argued that since the - assessors did not give their individual opinion as required by the above stated provision, the net effect is to vitiate the proceedings because in effect, the trial was without the aid of assessors. To bolster his argument, he cited the case of Richard Lucas Muhenza @ Leonard and 3 Ors v. The Republic, Criminal Appeal No. 504 of 2016 (unreported) in which, the Court underscored the need for having an effective participation of the assessors in the trial of cases, including the role -of givlng~-t~elr....individual opinion as required by ..t~-~ l~.w~.As.,_a r-esult of the irregujarity, the· learned counsel prayed to the Court to_ .exercise the powers of revision vested in it by S. 4 (2) of the Appellate -Jurts_di~tion Act -[Cap; 141 -~-~- . ?002] to nuHjfy_ tb~ proGeedings and _set ___, aside the judgment. 3 On her part, Ms. Mkonongo conceded that by virtue of the provisions of S:. 298 (1) of the CPA, each of the assessors ought to have 0 g iven .. his/he/ own opinion. She argued· however - that, since the · irregularity otcurred at the stage where the assessors ·were required to give their opinion, it is from that stage that the proceedings were vitiated, not the whole proceedings. She relied on the case of Mashaka Pastory Paulo Mahengi @ Uhuru & 5 Others v The Republic, Criminal Appeal No. 49 "A'', 50, 52,53,54 and 55 of 2015 (unreported). She submitted therefore that after quashing the vitiated proceedings and the judgment, a retrial should commence from the stage at which the error occurred not a trial de nova. Indeed, as agreed -by both the learned counsel for the appellant and the learned State Attorney, when taking the opinion of the assessors, the learned trial judge did not comply with the provisions of S. 298 (1) of the CPA. Instead of recording the opinion of each of the ... ,-.· ,·.,-~··,:1:,•.. t':i""'T"t!l•~"'\o• ~-. ..~ .:..,- "''?'·, .... ,-~~~•--,·- three assessors who participated· in the trial, the learned judge allowed one of them to read the opinion _which was jointly prepared by the assessors. According to the record, the following is what transpired:- "Mr. Shiia {Ht; reads out the opinion aloud and concludes.·-) 4 We wish to have the report accepted as our opinion in respect of tf}is cas~. ·We are all of the opinion that the accqsed . killed·: ,the deceased intentionally. We are ,, ••• • ; •--: • " ~ -I •:f' satisfied that the prosecution has discharged its burden of pfovlifg lhe case beyond reasonable doubt.'/• ·· - I I Although the record of appeal is silent on the request made by the j assessor (Mr. Shija) to have the written joint opinion accepted (so as to I '' form part of the record), our perusal of the original court record I revealed that the document was filed therein. I What then is the effect of the nbn-compliance? In the case of Yusuf Sylivester v. The Republic, Criminal Appeal No. 126 of 2014 (unreported), similar situation occurred. Having considered the nature of I I the irregularity, the Court held as follows:- I 11 Section 298 (1) of Cap. 20 is clear that each individual assessor must give his/her opinion although they are permitted by section 298 ( 4) of Cap. 20 to ~-Q........ "~ .. --.,., •• • C. ~1 ........ ! have consultations before'-affivlfig· at their verdict. The .. ' record of appeal at page 71 shows that after the ·-/earned trial judge had summed·-up to the assessors/ they were granted ten minutes for deliberations and · when the trial resumed, one of the assessors read a · •.•• - ., . joint verdict. The other remaining two as.sessors did not say whether-or not that is what they had agreed· ·. s upon.... With respect we agree that the trial was :conducted without following the procedure for guiding the assessors. That was an, irregularity which vitiated the proceedings." Having found that the irregularity vitiated the proceedings, the Court ordered a re-trial of the case. In another case, Mashaka Pastory Paulo Mahengi (supra) cited by Ms. Mkonongo in her submission, although the Court found also that non-compliance with S. 298 (1) of the CPA is fatal, it was of the view that the irregularity vitiated the proceedings from the stage at which the assessors' opinion was wrongly received. The Court observed I as follows:- I "The learned judge therefore did not fully have the aid ' of the assessors as they had not given him their individual opinion on the case before he gave Judgment; This must have prejudiced the appellants. The net effect this may have is to vitiate it and the ,: ---· ~':"~--- •~"-'= :,- ........ , ~ proceedings from the end of the summing up to the assessor~ of the evidence of the prosecution and the . ~ ... . . ~ . .. :·, . . defence by the learned Judge on 4/11/2014/ to the date the judgment and sentences were delivered. " In that case, like in the Yusuf Sylivester case (supra) the assessors I gave one combined opinion which was termed as "a unanimous 6 opinion". Furthermore; the record was silent on the opinion given by the assessors and the document containing the pronounced joint opinion "'" ·was not included in the record. However, in the case of Mulokozi Anatory v The Republic, Criminal Appeal No. 124 of 2014 (unreported), the Court took a different position as regards the irregularity. It held that the non-compliance is curable. In arriving at that decision, the Court cited with approval the Kenyan case of Francis Juma Musungu v Republic [1958] EA 192. In that case, the erstwhile Court of Appeal for Eastern Africa considered a similar situation in which the assessors gave a joint opinion instead of each of them giving his/her own opinion, a requirement which is also set out in the Kenyan Criminal Procedure Code. It decided that the irregularity is curable under S. 381 of that country's Criminal Procedure Code. Apart· from 'lhEf"tase of Francis Juma Musurigu: (supra~; the Court also relied· on Rule 115 of the Tanzania Court ,·of Appeal Rules, 2009 which provides as follows:- --.:,-~-- ''115. No Judgment decree or order ort11e,-High Court shall be revised or substantially varied on appeal, nor , a new trial ordered by the Court, on account of any 7 • • error, defect or irregularity, whether in the decision or otherwise/ not affecting the merits, or the Jurisdiction of the 1figh Court; and in the case of a second appeal _._ - r' •. this Rule shall be construed as applying to both the· I trial ·court and the first appellate court. "· Having considered the above stated authorities, we are of the ' considered view that in the particular circumstances of ,this case, the I irregularity is not fataL Unlike in the first two cases above; Yusuf Slylivester and Mashaka Pastory Paulo Mahengi (supra), the facts in the present case are distinguishable. Although the joint opinion was read by one assessor, the other two assessors confirmed that what was read by their fellow assessor was their correct opinion. This is reflected on page 181 of the· record where the other two ·assessors, Mr. Mwambusega and Ms. Mwajuma Fadhili were recorded to have stated as I follows:- "Mr. Mwambusega; .• · ,?.·,-·• "It..-,.~- . SJJ:'"ft.;~·· ,,..,,,. My Lord, the statement Just read out by my fellow assessor was prepared by all. of us and I agree entirely with it. Ms. MwiJiuma Fadhili: I also agre_e -- ~- with it, My Lord " _•l.' • .... •: 8 " • • ' As stated above, the written joi~~ opinion of the assessors was also filed in the court record. · GOided by th'e .above srated authorities and the applicable··position in this case, we find that, as held in the Mulokozi Anatory case (supra), the irregularity is curable. For this reason, we order hearing of the appeal to proceed on a date to be fixed by the Registrar. DATED at DAR ES SALAAM this 6th day of November, 2018. A.G. MWARIJA JUSTICE OF APP-EAL S. S. MWANGESI JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL I certify that this is a true-copy of the original. --b 8. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL ! 9 I