CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. J.A.. MLACHA, J.A, And NGWEMBE. J J U CRIMINAL APPEAL NO. 639 OF 2020 SIMON OTIENO..............................................................................APPELLANT VERSUS THE REPUBLIC........................................................................ ....RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Muqeta, J.l dated the 15th day of September, 2020 in Vide Criminal Session No.3 of 2019 RULING OF THE COURT 5th & 9th August, 2024 MUGASHA, J.A.: The appellant was charged and convicted of two counts of the offence of murder contrary to section 196 of the Penal Code (Cap. 16 R.E. 2002). According to the information laid against the appellant, the prosecution alleged that on 31/3/2015 at Bwai Kumsoma village within the District of Butiama, Mara Region, the appellant did murder Tatu d/o Simon and Kudra d/o Janja. The deceased persons shall be referred to in their respective names. The appellant did not plead guilty. A brief prosecution account underlying the conviction of the appellant is to the effect that: the appellant and Kudra Janja resided in the same house as a married couple and were blessed with one daughter named Tatu Simon Otieno. It is alleged that, on the fateful day at night time, while Kudra Janja was sleeping together with her deceased daughter Tatu Simon, saw the appellant pouring petrol on the net and set it ablaze. It is alleged that Kudra managed to escape having run to her brother's house leaving behind her daughter in the living room. The poor Tatu Simon was evacuated but she had sustained severe burn injuries and upon being taken to a dispensary, she was referred to Musoma Region referral hospital. However, she died before reaching there. The doctor who examined Tatu's body established that death was caused by 4th degree burns as the whole body was burnt. Kudra Janja who also sustained injuries continued to nurse wounds at home but as her condition did not get better, she was referred to Bugando referral hospital where she succumbed to death on 17/4/2015. The appellant denied each and every detail of the prosecution accusations. He claimed that, Kudra Janja was not his wife and that besides being arrested for defaulting to pay dues on sardines and that upon being taken to the police, he was tortured and forced to sign a statement. He added that, on the fateful day he was not at the scene of crime. The trial was conducted with the aid of assessors and after a full trial the evidence was summed up to the assessors, One assessor opined on the guilt of the appellant on the grounds of his unmistaken visual identification and the dying declaration of Kudra Janja who mentioned the appellant to be the culprit. The remaining two assessors returned a verdict of not guilty on grounds that, the prosecution account was weak on visual identification of the appellant and the absence of proof that the appellant was married to the late Kudra Janja. The trial Judge convicted the appellant as charged and sentenced him to death. Unamused, the appellant has appealed to the Court fronting a total of ten points of grievance in the substantive and supplementary memoranda of appeal. However, on account of what is to unfold in due course, we shall not reproduce the grounds of appeal. At the hearing of the appeal, the appellant who was present had the services of Mr. Gasper Mwanalyela, learned counsel whereas the respondent Republic was represented by Tawabu Yahaya Issa, learned Senior State Attorney. At the hearing, we invited the parties to address us on the propriety or otherwise of the trial on account of patent non- direction of assessors on a vital point of law on the defence of a lib iand failure by the trial Judge to consider the opinion of majority assessors without assigning reasons. Upon taking the floor, Mr. Gasper Mwanalyela submitted that the assessors were not addressed on the defence of a lib i and as such, they were not properly informed to make rational opinions on the guilt or otherwise of the appellant vis a vis the prosecution account. In this regard, he argued that, the trial was not conducted with the aid of assessors contrary to the provisions of section 265 of the Criminal Procedure Act [CAP 20 R.E.2019] (the CPA). On the other omission, Mr. Mwanalyela pointed out that, after the summing up of the evidence to the assessors, they gave their opinion whereas one assessor returned a verdict of guilty and the remaining two assessors returned a verdict of not guilty. However, the learned trial Judge convicted the appellant without considering the opinions of the two assessors or giving reasons for disagreeing with the opinions of majority assessors. He thus argued that, on account of the said omissions, the summing up was vitiated and so is the judgment of the trial court. To bolster his argument Mr. Mwanalyela cited to us the case of RICHARD S/O LUCAS MUHANZA @ LEONARD AND THREE OTHERS VS THE REPUBLIC, Criminal Appeal No. 504 of 2016 (unreported). On the way forward, Mr. Mwanalyela viewed that, although a retrial or fresh summing up would have been the appropriate remedy, it will serve no purpose given the weak prosecution account on the record which cannot sustain the conviction of the appellant and instead it would be utilized as an opportunity to fill in the prosecution evidence gaps. Thus, he implored us to reconsider the evidence and proceed to acquit the appellant. On the other hand, Mr. Issa conceded that besides the assessors not being addressed on the meaning and effect of the defence of alibi, the opinion of majority of assessors was not considered by the learned trial Judge. Like his counterpart, the learned Senior State Attorney argued the infractions vitiated both the summing up and the resulting trial court judgment. However, he submitted against a retrial and implored on the Court to order a fresh summing up given the water tight prosecution account which is sufficient to prove the charge of murder against the appellant. Having considered the submissions of learned counsel for both sides and the record before us, the issue for determination is the propriety or otherwise of the trial on account of the omission on the involvement of assessors at the summing up and failure by the learned trial Judge to consider the opinion of assessors. At the outset, we deem it crucial to point out that, prior to March 2022, section 265 of the Criminal Procedure Act mandatorily required all the criminal trials before the High Court including the subject of this appeal, to be conducted with the aid of two or more assessors as deemed fit by the trial court. However, following the amendments vide Written Laws (Miscellaneous Amendments) Act No.l of 2022 it is no longer a mandatory requirement to conduct a criminal trial with the aid of assessors because section 265 (1) of the CPA now reads as follows: ”265 (1) The high Court may, where it considers necessary fo r the interest o fju stice, s it w ith not less than two assessors provided that in deciding the matter, the judge sh a ll not be bound by the opinions o/assessors." Thus, since the trial under scrutiny was conducted in September, 2020, the law applicable was section 265 of the CPA which required criminal trials before the High Court to be conducted with the aid of assessors. This entailed active participation of assessors who in terms of section 177 of the Evidence Act [CAP 6 R.E.2019] with leave of the court are mandated to ask questions for clarification. Furthermore, at the end of the trial and after the summing up of the evidence by the trial Judge, the assessors are obligated to give their opinions in terms of section 298(1) of the CPA which stipulates as follows: "298 (1) Where the case on both sides is dosed, the Judge may sum up the evidence fo r the prosecution and the defence and sh a ll then require each o f the assessors to state h is opinion orally as to the case generally and as to any specific question o f fact addressed to him by the Judge, and record the opinion." It is settled law that, the opinion of assessors can be of great value and assistance to the trial judge if they fully understand the facts of the case before them in relation to the relevant law and if the law is explained to them and their attention is drawn to the salient facts of the case. Failure to do so render the value of opinion of assessors is correspondingly reduced. See - WASHINGTON S/O ODINDO VS REPUBLIC [1954] 21 EACA 392 and ALLY JUMA MAWEPA VS REPUBLIC, [1993] TLR 231. Given the stated position of the law, the follow up question is whether the non-direction on the salient point of law on the defence of a lib i did affect or influence the opinion of the assessors on the guilt or otherwise of the appellant. Our answer is in the affirmative and we shall explain. In the matter under scrutiny, besides denying the assertions by the prosecution, from pages 86 to 88 of the record of appeal, the appellant stated that, he was arrested for non-payment of dues on sardines and that on the fateful day, he was at Bwai London and not at the scene of crime. In other words, the appellant raised a defence of a lib i which is to the effect that he was not at the scene of crime on the fateful day. During the summing up, the defence of a lib i raised by the appellant was not given deserving attention by the learned trial Judge as reflected at page 89 of the record of appeal whereby the assessors were addressed as follows: "He raised a defence o f a lib i w ithout notice. You are a t lib erty to consider it d r ignore it." 8 Apparently, besides, not explaining to the assessors the meaning of the defence of alibi, the learned trial Judge seemed to have influenced the assessors on the manner of giving their opinion which was irregular. Apparently, the direction to the assessors can be discerned at page 114 of the record of appeal whereby the learned trial Judge ultimately rejected the defence of a lib i having concluded: "H is defence o f a lib i, despite being raised w ithout notice is inconsistent with h is innocence. This accused has not dem onstrated h is a lib i alb eit on the balance o fprobabilities..." We found the infraction irregular because the rejection of the appellant's defence of a lib i which was acted upon by the learned trial Judge to ground the conviction was not earlier on explained or made known to the assessors so as to enable them to make informed or rather rational opinions on the guilt or otherwise of the appellant as none of the assessors opined in respect of the appellant's defence of alibi. This was a result of deficient or inadequate summing up to the assessors which is tantamount to the trial being conducted without the aid of assessors. See: RICHARD LUCAS MUHANZA AND THREE OTHERS VS REPUBLIC (supra), SAID MSHANGAMA @ SENGA VS REPUBLIC, Criminal Appeal No. 8 of 2014 and MASOLWA SAMWELI VS REPUBLIC, Criminal Appeal No. 206 of 2014 (both unreported). In a nutshell, the omission offended the dictates of the provisions of section 265 of the CPA and we agree with both learned counsel that, the trial was vitiated and occasioned a failure of justice. Next is on the failure by the learned trial Judge to give reasons on the disagreement with the opinions of majority of assessors. It is settled law that, although the trial Judge is not bound by the opinion of assessors, where he/she does not agree with the assessor or assessors, he/she is obliged to record reasons. The respective reasons are crucial in order to enable the Court to gauge such reasons against full and informed views of assessors which they can express satisfactorily if the trial was with their aid. See: ABDALLAH BAZAMIYE AND OTHERS VS REPUBLIC [1990] TLR 42, BALAND SINGH VS REGINA [1954] 21 EACA 21. In the said cases, it was emphasized that, failure to consider opinion of assessors without assigning reasons is a serious omission and the trial cannot be said to have been with the aid of assessors. 10 In view of the stated infractions, parties locked horns on the way forward. While the learned State Attorney urged the Court to annul the judgment, the summing up notes, and quash and set aside the conviction and sentence, he implored us to remit the case file to the trial court for it to conduct a fresh summing up. This was opposed by the appellant's counsel who urged the Court to reconsider the evidence and set the appellant at the liberty as the charge was not proved at the required standard. Having considered the contending submissions from either learned counsel, the evidence on the record, the infraction on the summing up notes to the assessors and not on their selection and role at the trial, it is our considered opinion that, the infraction vitiated the summing up and not the entire trial. In the circumstances, in all fairness, it is not prudent to nullify the trial proceedings. Instead, ordering a fresh summing up to the assessors serves the best interests of justice. We held a similar position in the cases of JOHN CHIBUZO VS REPUBLIC, Criminal Appeal No. 8 of 2019 and NDARO SUMUNI MABUSE @ AMIRI @ RONALDO AND TWO OTHERS, Criminal Appeal No. 547 of 2019 (both unreported). In the latter case, the Court observed as follows: "On our part, we are prepared, which we now do, to order that since the com plained o f irregularity is on summing up notes to assessors and resultant assessors opinion, conviction and sentence, prudence dictates to leave the rest o f the proceedings intact." Yet, as correctly submitted by the learned counsel for either side, the failure by the trial Judge to give reasons for disagreeing with the assessors is a fatal omission. Thus, the stated infractions the summing up notes and the resulting judgment of the trial court cannot be spared on account of being null. Therefore, in terms of section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E 2019], we invoke our revisional jurisdiction and nullify the trial court judgment and summing up notes, quash and set aside the conviction and sentence meted on the appellant. It is further directed that, the case file be returned to the High Court for it to conduct a proper summing up to the assessors in compliance with section 298 (1) of the CPA and thereafter compose a fresh judgment and if need arises, give reasons for disagreement with the view of majority assessors. Meanwhile, the appellant should remain in custody. 12 It is so ordered. DATED at MWANZA this 8th day of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 9th day of August, 2024 in the presence of Appellant who appeared in person, Mr. Deogratias Richard Rumanyika and Mr. Sileo Leonce Mazullah, both learned State Attorneys for the respondent / Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13