CRIMINAL APPEAL NO 633 OF 2020 MWINURA FUGUTI MUMUNYA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO, J.A.. MASHAKA, 3.A And MDEMU. J.A^ CRIMINAL APPEAL NO. 633 OF 2020 MWINURA FUGUTI @ MUMUNYA.............................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) (Muqeta^JQ dated the 22nd day of September, 2020 in Criminal Session Case No. 49 of 2018 JUDGMENT OF THE COURT 12th & 18th July, 2024 MDEMU, J.A.: In the High Court of Tanzania, sitting at Musoma, the appellant herein was arraigned for the murder of a fellow fisherman one Ibrahim Magesa. According to the particulars of the offence contained in the information for murder, it was on 21st August, 2017 at Kiriba Village within the District of Butiama when the appellant allegedly participated in the said murder. According to Magesa Jirira Mafuru (PW1), it was in a cool night of 20th August, 2014 when the deceased returned at a fishing camp from a l nearby bar, possibly for boozing. It was alleged that, the appellant was shouting while moving towards the camp, and as it was already late night, other camp members had retired for sleep, only to be awakened by the deceased's noises. The noises progressed, this time in demand for food. The appellant and one Robert requested the deceased to stop shouting, else, he would be beaten. He obeyed and he too slept. In a short while, he woke up at about 01:00 hours while again shouting for food proceeded. This time, the appellant and his fellow Robert allegedly, did hit the deceased in the head using an oar, poured some hot water on him and thereafter threw the body of the deceased into lake waters. In the morning of 21st August, 2014, PW1 reported the matter to the deceased's mother and to PW2 one Majani Magesa where he named the appellant and Robert to be the perpetrators. According to the record, PW1 was able to identify the appellant through the aid of moonlight as a fellow fisherman villager. PW2 then reported the incident to the village leaders and further to Mugango Police Station. The appellant was subsequently arrested at Busekela Village on 20th November, 2014 and he was charged with the murder of the deceased, and upon the conclusion of his trial, he was found guilty of murder and was accordingly convicted and sentenced 2 to suffer death through hanging. Being aggrieved by that conviction and sentence, the appellant filed a memorandum of appeal expressing his dissatisfaction on the following grounds: 1. That, the honourable trial Judge o f the High Court erred in law by failing to follow the proper procedure of the law on the participation of assessors, that is to say, misdirection and failure to explain to them on vital points o f law from the evidence on record. The failure rendered the whole proceedings a nullity. 2. That, the honourable trial Judge o f the High Court erred inlaw and facts when he convicted and sentenced the appellant while the prosecution/republic's evidence had great major gaps which are: i. The prosecution kept on changing the particulars of the offence from committalproceedings to the trial stage. ii. The evidence ofPW l on identification was weak. Hi. The prosecution failed to call the investigator of the police who was a material witness. The appeal came for hearing on 12th July, 2024. The appellant had the services of Mr. Baraka Mbwilo, learned advocate whereas the respondent/Republic was represented by Ms. Revina Tibilengwa, learned 3 Principal State Attorney assisted by Mr. Adam Murusuli, learned State Attorney. Submitting on the first ground of appeal, Mr. Mbwilo stated that, the learned trial Judge directed the assessors that the law requires the prosecution to prove their case on balance of probabilities. He also faulted the learned trial Judge for failing to direct assessors on vital points of law such as malice aforethought, visual identification and the defence of alibi fronted by the appellant. He referred us to the following cases opining that, failure to give such directions in summing up it all meant the appellant was tried without the aid of assessors: Lazaro Katende v. The Director of Public Prosecutions (Criminal Appeal No. 146 of 2018 [2021] TZCA 56 (26 February 2021 TANZLII) and Galula Nkuba @ Maiago & Another v. The Director of Public Prosecutions (Criminal Appeal No. 394 of 2018 [2021] TZCA 492 (17 September, 2021 TANZLII). Regarding the way forward on the omission during summing up to assessors, the learned counsel urged us to nullify the proceedings, judgment and the resultant conviction and sentence. He equally urged us to acquit the appellant for want of evidence to sustain conviction, should we find it appropriate to order a fresh summing up to assessors of which he did not support. Ms. Tibelengwa did not have a different argument. On our part, we find the route taken by the learned counsel in the law relating to trial conducted by the aid of assessors is indeed a proper legal course to take. As stipulated under section 298 (1) of the Criminal Procedure Act, upon closure of the case for both the prosecution and the defence, the trial Judge has to conduct summing up to assessors by directing them on, among others, matters of facts and also on vital points of law relevant to the case before requiring them to state their opinion. In the instant appeal, the trial Judge did the following in his short summing up notes to assessors appearing at page 71 of the record appeal: first, he directed the assessors that the standard of proof in criminal cases is on the balance of probabilities. We find this to be improper on the part of the learned trial Judge because section 3 (2) (a) of the Evidence Act requires the standard of proof in criminal cases to be beyond reasonable doubt. The standard set by the learned trial judge during summing up to assessors in the trial of the appellant is applicable in civil cases. See; Charles Richard Kombe t/a Building v. Evarani Mtungi & Two 5 Others, (Civil Appeal No.38 of 2012 [2017] TZCA 153 (24 March 2017 TANZLII) at page 6. The second procedural mishap in the summing up notes to assessors is that vital points of law were just mentioned without elaboration. The learned trial Judge did not bother to explain what is all about on vital points mentioned and relevant to the conviction such as malice aforethought, visual identification and the defence of alibi. Third, the duties and roles of assessors were not explained at all. We are saying so because, looking at the summing up notes at page 71 of the record of appeal, the learned trial Judge began this way; this is a criminal trial for murder. The prosecution side has to prove the case on the balance of probabilities. Besides the misdirection on the standard of proof as so guided to assessors, our view is that, be it a direction on the summary of evidence or on vital points, the same should be preceded by the explanation on the roles and duties of assessors in their participation in criminal trials. We stated in Raphael Pius @Gweso & Another v. Republic, (Criminal Appeal No. 377 of 2021 [2024] TZCA 482 (21 June 2024 TANZLIII) at pages 12 through 15 that, the omission to explain duties and vital points to the assessors who fully participated in the trial is not fatal where there is no indication that the appellant will be prejudiced and the said vital points did not form the basis of conviction. We note in the instant appeal that, the appellant was convicted on the basis of the evidence of visual identification. He also raised the defence of alibi. However, we find the omission on failure to explain the duties of the assessors and inaction of the trial Judge to have the assessors explained on vital points prejudiced the appellant. The infraction rendered the trial without the participation of assessors contrary to section 265 of the Criminal Procedure Act in force at the time of the trial. That rendered the conviction and sentence meted out to the appellant a nullity. Going forward, both counsel registered their hesitation regarding the nullification of the summing up proceedings and the resultant judgment, conviction and the sentence and thereafter for this Court to make an order for a fresh summing up and composition of a judgement as was done in Ndaro Sumuni Mabuse@Amiri Ronaldo & Others v. Republic (Criminal Appeal No.117 of 2023) [2023] TZCA 1776 (18 October 2023 TANZLII) and Lazaro Katende v. The Director of Public Prosecutions (Criminal Appeal No. 146 of 2018 [2021] TZCA 56 (26 February 2021 TANZLII) to mention just a few of the Court's decisions. We think that line of argument is commendable in what we will endeavour to state in the second ground of appeal which outrightly takes us to the assessment of the entire evidence if at all it may ground conviction of the appellant for the offence of murder as complained in the raised grounds of appeal. As we turn to the second ground of appeal, the appellant basically raised two main points of contention which, had the trial court took into account, it could not have convicted the appellant. The first point is in respect of variance between the charge and the evidence and the second one relates to credibility of the evidence on visual identification by PW1. Beginning with the variance between the evidence and the information for murder, Mr. Mbwilo drew our attention to the following: One, the holding charge filed in the Court of Resident Magistrate was to the effect that the appellant committed the murder on 26th August, 2014. Two, the information for murder filed and through which the appellant stood committed for trial by the High Court indicates that the murder occurred on 21st August, 2017. Three, PW1 who was at the crime scene testified to have identified the appellant on 20th or 21st August, 2014. 8 Having submitted so, the learned counsel urged us to hold that, given the variance, the prosecution case was not proved. Ms. Tibilengwa shared those concerns as submitted by the learned counsel for the appellant. She added that, it is the duty of the prosecution to assemble evidence to prove the indictment, else the accused is entitled to enjoy an acquittal because, to her, whenever there is variance between the charge and evidence, it all means that the charge has not been proved. On our part, we cannot overemphasize here that, the charge, being the foundation of any criminal trial, stands at the centre of the initiation of a criminal procedural machinery and places the prosecution with the primary legal obligation to assemble evidence to prove that charge. We demonstrated above that, whereas the information for murder indicate that the appellant committed the offence on 21st August, 2017, the evidence of PW1 is to effect that, the appellant was identified on 20th or 21st August, 2014 taking part in the murder of the deceased. Besides, the trial proceeded without amending that information for murder. It is trite that, where the evidence laid by the prosecution varies with the charge laid at the door of the accused person, that amounts to, for all intent and purposes, failure to prove the charge in question. See for instance in 9 Joshua Soori v. Republic (Criminal Appeal No.66 of 2020) [2024] TZCA 517 (5 July 2024 TANZLII). As per the counsel's consensus, PWl's testimony to the effect that he identified the appellant on either 20th or 21st August, 2014 varies with the particulars of the offence in the charge which is to the effect that the appellant committed the alleged murder on 21st August, 2017. There is yet another mishap in the information for murder which appears to have been prepared and signed by the prosecution on 26thAugust, 2018 but was filed on 18th April, 2018, that is, three months before it was prepared. Yet, immediately upon the taking of plea of the appellant on the information that he committed the offence on 21st August, 2017 facts stated by the prosecution during the preliminary hearing informed the appellant to have murdered the deceased on 21st August, 2014. That was so in the prosecution of the case raising unanswered questions. What we actually note, given the circumstances, is uncertainties in the prosecution side as to when and who actually was the perpetrator of the deceased's death. Of course, this underlines what was registered by the appellant in his grounds of complaint that, the investigator was to be called to give evidence at least to lay down the foundation of the case and probably would have explained if at all, it was PW2 who reported the matter to the police station and who indeed was named by that reporter to have taken part in the murder. We are saying so because, PW1 who claimed to have identified the appellant as the killer, informed PW2 and the deceased's mother that Robert and the appellant were responsible for the killing. On his part, PW2 acting on that information supplied by PW1, he reported to the police naming the appellant, Suguti, Makwekuru, Maginga, Bakari Mtani and Sekere. Where did he get the names of all those persons. It is however not dear if those persons were arrested by the police besides the appellant. Equally, during committal proceedings and at the preliminary hearing, the prosecution indicated to use in evidence the appellant's confession in the cautioned and extrajudicial statements. However, the record is silent on what happened to those statements nor being tendered in evidence as exhibits. At any rate, assuming the offence was committed on 20th or 21st August, 2014 as alleged by PW1, we note here an unexplained delay in the arrest of the appellant which was on 20th November, 2014. That had a serious dour in the prosecution case and the ultimate conviction and sentence. li We are aware that in terms of section 143 of the Evidence Act, no particular number of witnesses are required for proof of any fact. However, we think that principle in the law of evidence is applicable where the evidence on record is credible. It cannot, in our view, be applied in cases, as in this one, where the evidence on record is incredible. In our view, the police investigator and the village officials to whom PW2 reported, ought to have been summoned as material witnesses for the prosecution. Guided by our decision in Wambura Marwa Wambura v. The Republic (Criminal Appeal No. 115 of 2019) [2022] TZCA 429 14 July 2022 TANZLII), we draw adverse inference against the prosecution for failure to call in evidence those material witnesses. Last in ground two is the evidence of visual identification. We think this should not detain us more. As submitted by Mr. Mbwilo, there is nothing meaningful in the evidence of PW1 which, even remotely, be equated to credible evidence of visual identification. As we alluded to above, the credibility of the evidence of PW1 on visual identification was too weak to have been acted upon by the trial Judge to base conviction on that evidence because the circumstances were prone to a mistaken identity. We are delighted to point out that, for the evidence of visual identification to be acted upon by the court to ground a conviction, that evidence must be watertight and should eliminate all possibilities of mistaken identity. See; Waziri Amani v. Republic [1980] T.L.R. 250. In the light of the foregoing, we find merit in this appeal and we hereby allow it. The conviction for the offence of murder is thus quashed and the sentence meted out thereat is accordingly set aside. We in the end order the immediate release of the appellant, if not lawfully held for some other causes. DATED at MWANZA this 17th day of July, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 18th day of July, 2024 in the presence of the Appellant in person and Ms. Brenda Mayalla, learned State Attorney for the is hereby certified as a true copy of the original.